{ "id": 182689, "name": "HERITAGE PULLMAN BANK AND TRUST COMPANY, as Trustee, Plaintiff-Appellee, v. EVELYN RAFACZ CARR et al., Defendants-Appellants (Norman J. Barry, as Ex'r under the Last Will and Testament of Edward A. Rafacz, et al., Defendants and Cross-Plaintiffs-Appellees)", "name_abbreviation": "Heritage Pullman Bank & Trust Co. v. Carr", "decision_date": "1996-09-17", "docket_number": "No. 1\u201495\u20142776", "first_page": "472", "last_page": "483", "citations": [ { "type": "official", "cite": "283 Ill. App. 3d 472" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "418 N.E.2d 56", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3135474 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0966-01" ] }, { "cite": "633 N.E.2d 1003", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 338", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5371590 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "347" }, { "page": "347" }, { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0338-01" ] }, { "cite": "573 N.E.2d 822", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "143 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591688 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/143/0289-01" ] }, { "cite": "463 N.E.2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "123 Ill. 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App. 3d", "case_ids": [ 2667892 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "1029" }, { "page": "1029" }, { "page": "1029" }, { "page": "1029" }, { "page": "1030" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/1024-01" ] }, { "cite": "615 N.E.2d 736", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "construing Rule 137" } ], "opinion_index": 0 }, { "cite": "155 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810152 ], "year": 1993, "pin_cites": [ { "parenthetical": "construing Rule 137" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0402-01" ] }, { "cite": "535 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "127 Ill. 2d 61", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564596 ], "year": 1989, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0061-01" ] }, { "cite": "507 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1987, "opinion_index": 0 }, { "cite": "155 Ill. App. 3d 223", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3463902 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "229" }, { "page": "229" }, { "page": "229" }, { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/155/0223-01" ] }, { "cite": "417 N.E.2d 1297", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "84 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045625 ], "year": 1981, "pin_cites": [ { "page": "184-85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0178-01" ] }, { "cite": "383 N.E.2d 185", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "73 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5440660 ], "year": 1978, "pin_cites": [ { "page": "366-67" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0342-01" ] }, { "cite": "565 N.E.2d 146", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "206 Ill. App. 3d 777", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2560883 ], "year": 1990, "pin_cites": [ { "page": "787" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/206/0777-01" ] }, { "cite": "512 N.E.2d 85", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "159 Ill. App. 3d 230", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3611371 ], "year": 1987, "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0230-01" ] }, { "cite": "617 N.E.2d 1211", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 717", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2929840 ], "year": 1993, "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0717-01" ] }, { "cite": "430 N.E.2d 1005", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "88 Ill. 2d 300", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082276 ], "year": 1981, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0300-01" ] }, { "cite": "530 N.E.2d 468", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "124 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217432 ], "year": 1988, "pin_cites": [ { "page": "485-86" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0483-01" ] }, { "cite": "628 N.E.2d 1121", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "256 Ill. App. 3d 821", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383907 ], "year": 1993, "pin_cites": [ { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0821-01" ] }, { "cite": "627 N.E.2d 160", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "Carr" } ], "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 676", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2979352 ], "weight": 13, "year": 1993, "pin_cites": [ { "parenthetical": "Carr" }, { "page": "685" }, { "page": "678" }, { "page": "678" }, { "page": "678" }, { "page": "685" }, { "page": "684" }, { "page": "685" }, { "page": "684-85" }, { "page": "684" }, { "page": "684" }, { "page": "681" }, { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0676-01" ] } ], "analysis": { "cardinality": 915, "char_count": 25209, "ocr_confidence": 0.776, "pagerank": { "raw": 8.754949120718527e-08, "percentile": 0.495034845660886 }, "sha256": "805bd8634928635ec15946da8aadf42bec61d9087111d919138a4a0c3d6c9f19", "simhash": "1:d3f71c9e4d5b6257", "word_count": 4201 }, "last_updated": "2023-07-14T17:57:33.654874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HERITAGE PULLMAN BANK AND TRUST COMPANY, as Trustee, Plaintiff-Appellee, v. EVELYN RAFACZ CARR et al., Defendants-Appellants (Norman J. Barry, as Ex\u2019r under the Last Will and Testament of Edward A. Rafacz, et al., Defendants and Cross-Plaintiffs-Appellees)." ], "opinions": [ { "text": "PRESIDING JUSTICE HARTMAN\ndelivered the opinion of the court:\nThis is the second appeal involving these parties. See Heritage Pullman Bank & Trust Co. v. Carr, 254 Ill. App. 3d 676, 627 N.E.2d 160 (1993) (Carr). Relevant to the present appeal, in Carr, we affirmed the circuit court\u2019s (1) award of fees and costs to Heritage Pullman Bank & Trust Co. (Trustee) in accordance with a trust agreement, (2) determination that defendant Evelyn Carr (Carr) took a groundless position in asserting that unanimous consent was required under the terms of the trust and should be charged with the Trustee\u2019s fees and costs, and (3) finding that Norman J. Barry, as executor of the estates of Edward and Henry Rafacz (collectively the Estates), did not take a groundless position and, therefore, should prevail on their cross-claims against Carr. We remanded Carr \"to the circuit court for a petition and evidentiary hearing on the Trustee\u2019s request for fees accruing since January 2, 1990.\u201d 254 Ill. App. 3d at 685.\nFollowing our remand, the circuit court granted the Estates\u2019 section 2\u2014611 petition for sanctions, which alleged that Carr had needlessly prolonged the litigation by pursuing her groundless claim, and awarded fees and costs in the amount of $98,755.50. Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014611. Carr again appeals, contending the circuit court erred in (1) denying her motion to strike and dismiss the Estates\u2019 section 2\u2014611 petition for sanctions, (2) not holding an evidentiary hearing as to whether Carr violated section 2\u2014611, (3) granting the Estates\u2019 section 2\u2014611 petition for sanctions, (4) refusing Carr a hearing as to the reasonableness of the Estates\u2019 fees, (5) denying her motion for leave to file a third-party complaint, and (6) applying section 2\u2014611 instead of Supreme Court Rule 137 (Rule 137) (134 Ill. 2d R. 137).\nPrior to the initial appeal, the parties entered into a settlement resolving their underlying dispute. The Trustee thereafter petitioned the court for its expenses. The Estates cross-claimed against Carr, asserting \"she should pay the Trustee\u2019s expenses because she took a groundless position causing the litigation.\u201d Carr, 254 Ill. App. 3d at 678. The Estates neither admitted nor denied the Trustee was entitled to fees but asserted Carr was liable. At the time, the Trustee\u2019s fees were $9,969.60. The court granted the Trustee\u2019s petition for fees on October 21, 1987, but did not rule on the Estates\u2019 cross-claim. The Trustee subsequently filed a supplement to its petition for fees.\nOn March 14, 1988, Carr responded to the Trustee\u2019s petition for fees, contending the Trustee was not entitled to fees because a control sheet generated by the Trustee \"confused\u201d her in that it indicated that unanimous consent of the beneficiaries was required. Based on this claim, the circuit court vacated its October 21, 1987, order granting the Trustee fees and set the matter for trial. Following trial, the court determined the Trustee properly filed suit and Carr failed to demonstrate that unanimity was required under the terms of the trust. The court also found in favor of the Trustee as against all beneficiaries, and in favor of the Estates as against Carr. These findings were affirmed on direct appeal. Carr, 254 Ill. App. 3d at 678.\nPrior to the initial appeal, the Estates filed a section 2\u2014611 petition for sanctions against Carr because she had asserted a groundless claim of \"confusion.\u201d On October 16, 1991, the circuit court continued all petitions for fees and sanctions until this court had ruled on Carr\u2019s direct appeal.\nFollowing the disposition in Carr, the Estates filed a second amended section 2\u2014611 petition for sanctions (petition for sanctions), asserting Carr had failed to make a reasonable inquiry into the facts to support her claim of \"confusion\u201d and requesting fees from March 14, 1988, to December 31, 1993. Attached to the petition for sanctions were the affidavits and billing records of the Estates\u2019 attorneys. Carr moved to strike and dismiss the Estates\u2019 petition for sanctions, which was denied by the circuit court. Carr thereafter filed a response to the petition for sanctions, contesting a violation of section 2\u2014611, and moved for leave to file a third-party complaint, which was denied by the court as dilatory, barred by laches, \"in violation of the time limits provided by Supreme Court Rules and an abuse of process.\u201d\nAt the hearing on the Estates\u2019 petition for sanctions, the circuit court initially permitted Carr to argue \"in support of the position that this is a hearing for something other than the reasonableness of fees.\u201d Carr\u2019s counsel unsuccessfully asserted the court should hold an evidentiary hearing to determine whether or not Carr assumed a groundless position in the underlying litigation. The court noted that the matter had been decided by the appellate court and there was \"no question that there is a 2\u2014611 violation.\u201d The court then entered judgment for the Estates in the amount of $98,755.50, the amount claimed in the Estates\u2019 petition for sanctions and unrebutted by Carr. Carr appeals.\nI\nCarr initially contends the circuit court erred in denying her section 2\u2014615 motion to strike and dismiss the Estates\u2019 petition for sanctions because the Estates failed (1) to specify which fees were incurred by reason of Carr\u2019s groundless claim, and (2) to plead an essential element of section 2\u2014611.\nNo action should be dismissed on a motion pursuant to section 2\u2014615 for failure to state a cause of action unless it clearly appears that no set of facts can be proved under the pleadings which will entitle plaintiff to relief. Fulton-Carroll Center, Inc. v. Industrial Council of Northwest Chicago, Inc., 256 Ill. App. 3d 821, 824, 628 N.E.2d 1121 (1993). When deciding a motion to dismiss, all well-pleaded facts in the complaint will be regarded as true and all reasonable inferences will be considered correct. Krasinski v. United Parcel Service, Inc., 124 Ill. 2d 483, 485-86, 530 N.E.2d 468 (1988). The complaint is deficient when it fails to allege the facts necessary for plaintiff to recover. People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 308, 430 N.E.2d 1005 (1981). The grant or denial of a section 2\u2014615 motion is within the sound discretion of the circuit court. Evers v. Edward Hospital Ass\u2019n, 247 Ill. App. 3d 717, 724, 617 N.E.2d 1211 (1993).\nA section 2\u2014611 motion for attorney fees must meet minimum requirements of specificity so that a responding party has an opportunity to challenge and defend against the allegations made and so that fees and costs may be apportioned fairly. Brandel Realty Co. v. Olson, 159 Ill. App. 3d 230, 235, 512 N.E.2d 85 (1987). A section 2\u2014611 petition must state specifically which statements were falsely made and what fees were incurred as a result of such statements. Laurence v. Flashner Medical Partnership, 206 Ill. App. 3d 777, 787, 565 N.E.2d 146 (1990). The movant bears the burden of proving entitlement to fees and costs. Johnson v. La Grange State Bank, 73 Ill. 2d 342, 366-67, 383 N.E.2d 185 (1978). A circuit court\u2019s decision to grant or deny a motion for sanctions will not be overturned unless it can be shown that the court abused its discretion. Pole Realty Co. v. Sorrells, 84 Ill. 2d 178, 184-85, 417 N.E.2d 1297 (1981).\nCarr maintains the Estates\u2019 petition for sanctions fails to specify the attorney fees incurred as a result of her false statements because the Estates merely included every hour of work since March 14, 1988, without demonstrating how the fees were related to Carr\u2019s improper pleadings.\nAt the time Carr filed her pleading contending she was confused by the Trustee\u2019s control sheet, the only issues remaining before the circuit court were the amount of the Trustee\u2019s fees and the Estates\u2019 cross-claim against Carr, which asserted that Carr was solely liable for the Trustee\u2019s fees. As a result of Carr\u2019s claim, the court vacated its earlier order granting attorney fees to the Trustee. Although Carr contends the Estates\u2019 petition for sanctions failed to account for the fact that the Estates initiated a cross-claim against Carr and also agreed with her position that the Trustee was not entitled to fees in the initial appeal, Carr asserted her confusion defense in response to the Trustee\u2019s petition for fees. See Carr, 254 Ill. App. 3d at 678. As a result of this groundless claim, Carr singlehandedly extended this litigation over an eight-year period. The Estates\u2019 filing of a cross-claim against Carr, asserting the Trustee was not entitled to fees, does not alter the equation because if the Estates had not filed a cross-claim against Carr, they would have been precluded, by principles of res judicata, from asserting that Carr was responsible for the Trustee\u2019s fees. Had Carr not raised her groundless claim, the only issue remaining was the amount of the Trustee\u2019s fees and who was responsible for them; the court had previously determined, by its order of October 21, 1987, the Trustee was entitled to fees. Not only did Carr\u2019s claim of confusion expose the Estates to the possibility of being liable for the Trustee\u2019s mushrooming attorney fees but, also, if Carr\u2019s confusion defense was valid, the Estates would have been solely liable for the Trustee\u2019s fees. Consequently, the Estates were required to contest the Trustee\u2019s fees. Carr also failed to present any evidence contesting the affidavits of the Estates\u2019 attorneys and the circuit court could properly accept the unrebutted affidavits of the Estates\u2019 attorneys. See Aroonsakul v. Flanagan, 155 Ill. App. 3d 223, 229, 507 N.E.2d 1 (1987).\nCarr contends the Estates failed to allege her pleading was filed for an \"improper purpose.\u201d A party seeking to recover attorney fees under section 2\u2014611, however, has the burden of proving that his opponent made untrue allegations without reasonable cause. In re Estate of Wernick, 127 Ill. 2d 61, 76, 535 N.E.2d 876 (1989); see also In re Estate of Hoover, 155 Ill. 2d 402, 615 N.E.2d 736 (1993) (construing Rule 137). Carr\u2019s contention must be rejected. The circuit court did not abuse its discretion in denying Carr\u2019s motion to strike and dismiss the Estates\u2019 petition for sanctions.\nII\nCarr next argues the circuit court erred in denying her an evidentiary hearing as to whether she had violated section 2\u2014611.\nIn order to determine whether sanctions are proper under section 2\u2014611, the circuit court generally must conduct a hearing to determine whether an untrue statement was made without reasonable cause. Fried v. Barad, 187 Ill. App. 3d 1024, 1029, 543 N.E.2d 1018 (1989). If proof can be made, however, on the basis of pleadings or trial evidence, an additional hearing is not required. Barad, 187 Ill. App. 3d at 1029.\nCarr contends there is a distinction between a finding that her claim was groundless and a finding that she violated section 2\u2014611, relying upon Webbe v. First National Bank & Trust Co., 139 Ill. App. 3d 806, 487 N.E.2d 711 (1985) (Webbe). As in the present case, Webbe involved a trust agreement and a determination that the trustee was entitled to reimbursement for attorney fees and costs due to the assertion of a groundless defense. In Webbe, plaintiffs claim was groundless, but the court reversed the circuit court\u2019s finding that plaintiff was personally responsible for fees pursuant to section 2\u2014611, because the circuit court\u2019s \"finding that the complaint and amended complaint were untrue\u201d was not \"technically correct.\u201d 139 Ill. App. 3d at 812. Specifically, the pleadings the circuit court had found false were \"simply averments of fact describing the parties and their circumstances and were admitted by defendants.\u201d (Emphasis added.) 139 Ill. App. 3d at 812.\nWebbe is readily distinguishable from the present case. The Estates never admitted or stipulated that Carr\u2019s claim of confusion was valid or that Carr\u2019s claim was a mere misstatement of fact. Carr\u2019s claim was her personal defense against the Trustee\u2019s petition for fees. A finding that a claim is groundless is not tantamount to a finding of a section 2\u2014611 violation; yet the circuit court in the present case specifically found that Carr\u2019s \"allegation that [Trustee] *** confused her\u201d was groundless. (Emphasis added.) The court observed that Carr\u2019s position was unsupported \"in fact or law.\u201d These findings were affirmed on direct appeal and have become the law of the case. Kennedy v. First National Bank, 259 Ill. App. 3d 560, 563, 631 N.E.2d 813 (1994). The circuit court\u2019s findings prior to the initial appeal establish that Carr had filed a pleading which was not based in law or fact and, therefore, was groundless. Carr asserts the issue is whether she filed her pleadings after making a reasonable inquiry that was well grounded in fact and law. The court\u2019s initial finding observed, however, that Carr \"has failed to present the evidence of fault on [Trustee\u2019s] part which would warrant denial of its petition for fees.\u201d Carr, 254 Ill. App. 3d at 685. Carr\u2019s testimony revealed that \"she wanted unanimous consent to be required,\u201d but \"she had never paid attention to what was required under the trust agreement.\u201d Carr, 254 Ill. App. 3d at 684. In Carr, we affirmed the circuit court\u2019s determination that nothing in Carr\u2019s \"testimony even purports to support Carr\u2019s assertion that she was confused by [Trustee\u2019s] documents.\u201d Carr, 254 Ill. App. 3d at 685. The circuit court could determine on the basis of pleadings and trial evidence that an additional hearing was not required and that Carr had filed a pleading in violation of section 2\u2014611. See Barad, 187 Ill. App. 3d at 1029.\nIll\nCarr next argues the circuit court erred in granting the Estates\u2019 section 2\u2014611 petition for sanctions.\nA\nThe imposition of attorney fees is proper where movant demonstrates his opponent has pled statements which he knew, or should have known, to be untrue. Webbe v. First National Bank & Trust Co., 139 Ill. App. 3d 806, 812, 487 N.E.2d 711 (1985). Section 2\u2014611 seeks to prevent vexatious actions based upon false statements, without legal foundation, thus causing an undue burden on the opponent to disprove such allegations. Webbe, 139 Ill. App. 3d at 812. Section 2\u2014611 is penal in nature and should be invoked only in those cases falling strictly within its terms. Webbe, 139 Ill. App. 3d at 812. The grant or denial of a section 2\u2014611 motion is within the sound discretion of the circuit court. Chicago City Bank & Trust Co. v. Pick, 235 Ill. App. 3d 252, 257, 602 N.E.2d 484 (1992).\nCarr contends although she was unsuccessful in asserting confusion initially, the Estates have failed to prove that she did not make a reasonable inquiry. Carr asserts the Trustee\u2019s control sheet indicated unanimous consent was required and, therefore, she asserted unanimity was required and later, she was confused by the control sheet. The circuit court\u2019s findings, however, indicate Carr was unable to \"show that she was confused by the control sheet,\u201d and nothing in Carr\u2019s testimony \"even purports to support [her] assertion that she was confused by [Trustee\u2019s] documents.\u201d Carr, 254 Ill. App. 3d at 684-85. The evidence at trial demonstrated that Carr:\n\"failed to provide any legal authority to support her position. Carr herself testified that she told [her attorney] she wanted unanimous consent to be required; she had no opinion prior to that time whether unanimous consent was required; she had never paid attention to what was required under the trust agreement and had not received an opinion by [her attorney]; she never spoke to a Trustee representative about this issue and no one ever told her unanimity was required; and she believed unanimous consent was required because previous directions had been unanimous.\u201d Carr, 254 Ill. App. 3d at 684.\nThis evidence demonstrates Carr pled statements that she knew, or should have known, to be untrue and contradicts Carr\u2019s contention that she did not know the control sheet was not a trust document. Notwithstanding Carr\u2019s knowledge about the control sheet, she did not allege the control sheet confused her until two years after locating it. She also failed to discuss with the Trustee whether unanimous consent was required. Carr, 254 Ill. App. 3d at 684. Carr asserts the scope of the first trial was whether the Trustee was at fault for filing the declaratory action. The record belies this claim because the circuit court held \"Carr had taken a groundless position\u201d and the Trustee was entitled to reasonable fees. Carr, 254 Ill. App. 3d at 681.\nThe circuit court\u2019s order in the present case found that (1) Carr\u2019s March 14, 1988, pleading \"contained groundless claims of 'confusion\u2019 \u201d; (2) Carr \"failed to make a reasonable inquiry into the facts\u201d; (3) the \"pleadings were interposed for an improper purpose, that is, to cause unnecessary delay and needless increase in the costs of litigation\u201d; and (4) the fees charged by the Estates\u2019 attorneys were reasonable and \"incurred as a direct result of\u2019 Carr\u2019s groundless pleadings.\nCarr\u2019s assertions must be rejected. The circuit court did not err in granting the Estates\u2019 section 2\u2014611 petition for sanctions.\nB\nCarr next argues the circuit court\u2019s award of sanctions was improper because the Estates did not present evidence to show the fees and costs that they incurred resulted from the section 2\u2014611 violation. Carr\u2019s contentions here mirror those arguments advanced in part I of this opinion; for the reasons aforementioned, the circuit court\u2019s award of sanctions was proper.\nIV\nCarr next asserts the circuit court erred in denying her a hearing as to the reasonableness of the Estates\u2019 fees.\nIn assessing the reasonableness of fees, the circuit court should consider a variety of factors; the court is permitted to use its own knowledge and experience to assess the time required to complete particular activities; and a reviewing court may not reverse an award of attorney fees merely because it may have reached a different conclusion. Olsen v. Staniak, 260 Ill. App. 3d 856, 865-66, 632 N.E.2d 168 (1994). The determination of attorney fees is within the discretion of the court. See Aroonsakul v. Flanagan, 155 Ill. App. 3d 223, 229, 507 N.E.2d 1 (1987).\nCarr maintains she was denied the opportunity to cross-examine the affiants regarding their fees, relying upon Olsen v. Staniak, 260 Ill. App. 3d 856, 865-66, 632 N.E.2d 168 (1994), and Fried v. Barad, 187 Ill. App. 3d 1024, 1029, 543 N.E.2d 1018 (1989). Although Barad holds that an evidentiary hearing on the reasonableness of fees is required because the issue of reasonableness is a matter of proof which should be subject to cross-examination (187 Ill. App. 3d at 1030), the circuit court\u2019s acceptance of unrebutted affidavits of counsel as to fees, in the absence of an evidentiary hearing, is within its discretion (see Aroonsakul v. Flanagan, 155 Ill. App. 3d 223, 229, 507 N.E.2d 1 (1987)). In Staniak, the circuit court reduced an attorney\u2019s fees pursuant to section 2\u2014611 after holding a hearing and matching \"those expenses related to defending the frivolous pleadings.\u201d Staniak, 260 Ill. App. 3d at 866. In Staniak, the circuit court did not abuse its discretion in independently matching fees to frivolous pleadings notwithstanding the nonmovant\u2019s failure to provide any rebuttal evidence to the attorney\u2019s affidavit. Unlike Staniak, the circuit court in the present case did not independently have to match fees to frivolous pleadings because the Estates asserted that Carr was liable for all fees incurred since the filing of her groundless claim. Carr did not present any evidence or counteraffidavits to contradict the evidence submitted by the Estates and the circuit court was justified in relying upon the unrebutted affidavits of the Estates\u2019 attorneys. See Aroonsakul, 155 Ill. App. 3d at 229.\nCarr submits the affidavits of the Estates\u2019 attorneys violate Supreme Court Rule 191. 145 Ill. 2d R. 191. Carr failed to raise this issue in the circuit court. See Liddle v. Cepeda, 251 Ill. App. 3d 892, 896, 623 N.E.2d 849 (1993). The circuit court did not err in denying Carr a hearing as to the reasonableness of the Estates\u2019 attorney fees.\nV\nCarr next asserts the circuit court erred in denying her motion to file a third-party complaint. Carr submits Supreme Court Rule 183 and section 2\u2014406(b) of the Code of Civil Procedure (section 2\u2014406(b)) (735 ILCS 5/2\u2014406(b) (West 1994)) govern this issue although her motion to file a third-party complaint was not made pursuant to any specific section of the Code of Civil Procedure.\nSection 2\u2014406(b) provides that a defendant may file a third-party complaint \"[w]ithin the time for filing his or her answer or thereafter by leave of court\u201d against a party \"who is or may be liable to him or her for all or part of the plaintiffs claim against him or her.\u201d 735 ILCS 5/2\u2014406(b) (West 1994). A necessary party is an individual or entity having a present, substantial interest in the matter being litigated, and in whose absence complete resolution of the subject matter in controversy cannot be achieved without affecting that interest. Brumley v. Touche Ross & Co., 123 Ill. App. 3d 636, 463 N.E.2d 195 (1984). The denial of a motion to file a third-party complaint will not be regarded as error absent a manifest abuse of discretion. Winter v. Henry Service Co., 143 Ill. 2d 289, 573 N.E.2d 822 (1991).\nSupreme Court Rule 183 provides that a court \"may extend the time for filing any pleading.\u201d 134 Ill. 2d R. 183. The movant must demonstrate that there is \"good cause\u201d for allowing the extension. Waterford Executive Group, Ltd. v. Clark/Bardes, Inc., 261 Ill. App. 3d 338, 347, 633 N.E.2d 1003 (1994). The grant or denial of a motion for an extension is within the sound discretion of the circuit court. Clark/Bardes, Inc., 261 Ill. App. 3d at 347. Inadvertence, mistake, or absence of prejudice to the opposing party or inconvenience to the circuit court does not constitute \"good cause.\u201d Clark/Bardes, Inc., 261 Ill. App. 3d at 347.\nThe Estates filed their initial petition for sanctions on January 17, 1991. The Estates\u2019 second amended petition for sanctions was filed on January 21, 1994. More than one year later, Carr moved for leave to file a third-party complaint on May 9, 1995. At the time, the Estates\u2019 petition for sanctions was set for hearing on July 17, 1995. The circuit court precluded argument and denied the motion as being untimely.\nCarr contends the circuit court abused its discretion because the third party, Henry Synek, was Carr\u2019s counsel who signed the two pleadings setting forth her confusion claim. Carr knew of the Estates\u2019 original petition for sanctions on January 17, 1991, but she did not move the court for leave to file a third-party complaint until May of 1995. Neither Carr\u2019s motion nor her third-party complaint set forth any bases to permit the filing of the third-party complaint four years after the initial pleading.\nCarr submits Synek is a necessary party but has not cited any case law to support this proposition, in violation of Supreme Court Rule 341(e)(7). 134 Ill. 2d R. 341(e)(7). Notwithstanding this omission, section 2\u2014611 sanctions were imposed against Carr for failing \"to make a reasonable inquiry into the facts before filing the *** pleadings.\u201d (Emphasis added.) Carr was not sanctioned for taking a position unsupported by existing law. Further, Synek was not the attorney who allegedly advised Carr regarding unanimity prior to the initial appeal. See Carr, 254 Ill. App. 3d at 680. The circuit court did not err in denying Carr\u2019s motion for leave to file a third-party complaint.\nVI\nCarr next contends the circuit court improperly applied section 2\u2014611, instead of Rule 137, and, further, it is unconstitutional to apply section 2\u2014611 because it was repealed in 1989.\nNotwithstanding Carr\u2019s failure to raise this argument in the circuit court (see Liddle v. Cepeda, 251 Ill. App. 3d 892, 896, 623 N.E.2d 849 (1993)), and her lack of case law and argument in her appellate brief (see 134 Ill. 2d R. 341(e)(7); Wilson v. Continental Body Corp., 93 Ill. App. 3d 966, 418 N.E.2d 56 (1981)), Carr\u2019s contention must be rejected because a motion for sanctions relating to a pleading filed prior to August 1, 1989, is properly analyzed under section 2\u2014611 of the Code of Civil Procedure; Rule 137 applies to offensive pleadings filed on or after its effective date, August 1, 1989. Chicago City Bank & Trust Co. v. Pick, 235 Ill. App. 3d 252, 256, 602 N.E.2d 484 (1992).\nFor the foregoing reasons, the order of the circuit court is affirmed.\nAffirmed.\nDiVITO and BURKE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HARTMAN" } ], "attorneys": [ "Carr & O\u2019Rourke Associates, of Chicago (Glenn J. Jazwiec and Donald A. Carr, of counsel), for appellants.", "Rothschild, Barry & Myers (Jonathan E. Rothschild and Kevin J. Moore, of counsel), and Winston & Strawn (Calvin P. Sawyier, of counsel), both of Chicago, for appellees." ], "corrections": "", "head_matter": "HERITAGE PULLMAN BANK AND TRUST COMPANY, as Trustee, Plaintiff-Appellee, v. EVELYN RAFACZ CARR et al., Defendants-Appellants (Norman J. Barry, as Ex\u2019r under the Last Will and Testament of Edward A. Rafacz, et al., Defendants and Cross-Plaintiffs-Appellees).\nFirst District (2nd Division)\nNo. 1\u201495\u20142776\nOpinion filed September 17, 1996.\nCarr & O\u2019Rourke Associates, of Chicago (Glenn J. Jazwiec and Donald A. Carr, of counsel), for appellants.\nRothschild, Barry & Myers (Jonathan E. Rothschild and Kevin J. Moore, of counsel), and Winston & Strawn (Calvin P. Sawyier, of counsel), both of Chicago, for appellees." }, "file_name": "0472-01", "first_page_order": 490, "last_page_order": 501 }