## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Hess v. Loy d

, 2012 IL App (5th) 090059

Appellate Court Caption LAWRENCE J

. HESS, Plaintiff-Appellant, v. RONAL D O. L OYD and C ATHY J

. L OYD, Def endants-A

ppellees (B ruce A. Carr, Part y

Appellant).

District & N o. Fifth District Docke t No. 5-09-0059

Filed J anuar y 17, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action asser ting a lien for the attorney fee s alleg edly due plaintiff for the repr esenta

tion he provided t o d efe ndants in a medical malprac tice action during the time p l ai n t i ff was employ ed by a law firm that
t erminate d him befor e the case was resolved, the trial court p ro p er l y g rante d judgme nt on the p leading s in favor of defe ndants wher e the
contra ct plaintiff had with the law firm wher e he was employ ed provided

no basis on which he could proce ed ag ainst defe ndants, and based on the finding s that plaintiff’s complaint was not war rante d by exis ting law and

w a s in te rposed for an improper purpose, sanctions wer e properly im p o s e d pursuant to Supreme Court Rule 137 and sanctions on ap p ea l wer e g rante d pursuant to Rule 375.

Dec ision Under Review Appea l from the Circuit Court of Montgome ry County
, No. 08-L -11; the Hon. Kelly

D. L ong , J udg e, pre siding.

J udg ment Affir med; motion to supplement the rec ord on appea l denied; motion for sanctions on appe al g rante d; cause rema nded.Counsel on

Appea l Br uce A. Carr, of Rex Carr L aw Fi rm , L L C, of East St. L ouis, for appellants.

Todd A. Br esney , of Kanoski & Associates, of Bloomi n gton, for appellee s.

Panel J USTI CE SP OMER delivere d the judg ment of the c ourt, with opinion.
J ustice Stewar

t concur red in the judg ment and opinion.
J ustice Goldenher sh concur red in part and dissented in part, with opinion.

OP INION

¶ 1 The plaintiff, L awr ence J

. Hess, appea ls from the Dec ember 5, 2008, order of the circ uit
court of Montgome ry County which g rante d a judgme nt on the pleading s to the defe ndants, Ronald O. L oyd and Cathy J

. L oyd, pursuant to section 2-615(e ) of the I llinois Code of Civil Procedur e (the Code) (735 I L CS 5/2-615(e) (West 2008)). Mr. Hess and his attorney , Br uce A. Carr, also appea l from t h e J an uary 30, 2009, order of the circ uit court of Montgome ry County
, as amende d by an order dated Marc h 2, 2010, which was enter ed while this appea l

wa s held in abeyance pursuant to an order enter ed by this court. Pursuant to the circ u i t court’s order s, Mr. Hess and Mr. Carr are require d to pay the L oyds a total of $9,873.83 for attorney fee s and costs as sanc tions pursuant to I llinois Supreme Court Rule 137 (e ff. F eb. 1, 1994). For t he following reasons, we aff irm all three order s entere d by the circuit court. Also befor e this court is the L oyds’ motion for sanctions on appea l pursuant to I llinois Supreme Court Rule 3 7 5 (ef f. Fe b. 1, 1994), which was taken with the case

. For the following rea sons, we allo w t h e m o t ion and rema nd this case to the circ uit court for a deter mination of the amount of s an ctions on appea l. Finally
, befor e this court is the defe ndants’ emer g ency motion to supplement the rec ord with this court’s previous decision in Loyd v. Billit er , No. 5-09-0065 (Oc t. 15, 2010) (unpublished o rd er pursuant to I llinois Supreme Court Rule 23 (ef f. May 30, 2008)). W e hereby deny the m otio n as m oot, as t his court is full y

cognizant of its prior decisions and has fully considere d the relevanc e of that decision her ein.

¶ 2 FACTS ¶ 3 M r. He s s i s an at t o rn ey who is a former associate of Kanoski & As s o ci at es , an incorpora ted law firm. Mr. Hess, thro u gh his attorney , Mr. Carr, filed a complaint in the circ uit c ourt of Montgome ry County on J uly 17, 2008, ag ainst the L oyds, who wer e clients of Kanoski & Associates during the time that Mr. Hess was employ ed there

. Attache d to the complaint is a copy of a conting ency fee contra ct, dated Fe bruar y 11, 2002, betwee n Kanoski & Associates and the L oyds, wher eby the L oyds ag ree d that Kanoski & Associates would

-2-pursue their medical malprac tice claim on their behalf

. Also attache d to the complaint is an employ ment co n t ra ct b etween Mr. Hess and Kanoski & Associates, dated May 9, 2001, which cle arly

states the following : “Employ ee acknow ledg es t h at while licensed employ ees must perf orm all leg al service s, the clients contra cting for said service s are clients of the C orporation and not of any individual employ ee.” ¶ 4 The employ

ment contra ct further provides that Mr. Hess would rec eive, as compe nsation for his service s, a salary plus a bonus in the form of a perc entag e of the fee s he g ener ated on behalf of Ka noski & Assoc iates. ¶ 5 T h e co m p l ai n t al l ege s t h at Ka noski & Associates assig ned the L oyds’ med i ca l malprac tice file to Mr. Hess for handling

. The complaint contains a multit ude of para g raphs
reg arding other clients’ files that Mr. Hess worke d on and other alleg ations that appea r to be direc ted at the conduct of Kanoski & Associates which have no rele vance to the L oyds, who

are the sole defe ndants. The complaint alleg es t h at o n Fe bruar y 14, 2007, Kanoski & Associates terminated Mr. Hess’s employ ment in bad faith and destroyed his persona l files and work product, that Mr. Hess added over $1 million in value to Kanoski & Associates’

case s, that Kanoski & Associates fired him to deprive him of his bonuses, and that Kanoski & A ssociates owe d Mr. Hess $316,616.21 in unpaid sa lary and bonuses. ¶ 6 Acc ording to the complaint, an d as substantiated by exhibi ts, in May 2008, Mr. Hess, throug h his attorney , Mr. Carr, of the Rex C ar r L aw Firm, wher e Mr. Hess was then employ ed, sent letters to many of the clients of Kanoski & Associates, including the L oy ds, “notifying” them that he rema ined their attorney and was responsible for t h ei r files. The L oyds sent a return letter to Mr. Carr, which is also attache d to the complaint and stated the following : “I rec eived y

our letter reg arding Mr. Hess. I am writing to inf orm y ou that Mr. Hess I S NO T re s ponsible for my lawsuit. I have a very competent attorney

. Do not contac t m e ag ain re g ardingthis matter.” ¶ 7 Acc ordingto the complaint, and as substantiated by exhibi ts and by the re cords of

this
court in Loyd v. Billit er , No. 5-09-0065 (Oc t. 15, 2010) (unpublished order pursua n t t o I llinois Supreme Court Rule 23 (ef f. May 30, 2008)), M r. He s s , throug h Mr. Carr, filed a notice of attorney lien pursuant to section 1 of the Attorney s L ien Act (770 I L CS 5/1 (West 2008)), dated M ay

15, 2008, in the L oyds’ m edica l malprac tice lawsuit. The L oyds filed a petition to strike or adjudicate the lien on the basis that they had no contra ct with Mr. Hess, bu t i n s tead contra cted with Kanoski & Associates, which was later amende d to include Kennith W. Bla

n, J r., an aff

iliated attorney

. The petition to strike or adjudicate the lien was supported by

the re levant contr acts. ¶ 8 Ba sed on th e fa ct u al al leg ations outlined above, Mr. Hess, throug h Mr. Carr, a lleg ed

cause s of action ag ainst the L oyds in five counts: (1) brea ches of contra ct, (2) unjust

en ri chment and quantum meruit
, (3) brea ches of promises, (4) statutory , contra ctual, an d equitable liens, and (5) tortious interfe re n ce wi th contra cts, business expectations, and economic advanta g es. On August 20, 2008, the L oyds filed a motion for judgme nt on the pleading s pursuant to section 2-615(e ) of the Code (735 I L CS 5/2-615(e) (West 2008)) and

-3-for sanctions pursuant to I llinois Supreme Court Rule 137 (ef f. Fe b. 1, 1994). On August 28, 2008, Mr. Hess, throug h Mr. Carr, filed a motion for leave to file an amende d complaint to join Ka n o ski & Associates, Ronald Kanoski, and Kennith W. Bla n, J r., as defe ndants. Howeve r, the proposed amende d complaint did not add to or chang e the alleg ations ag ainst the L oyds. ¶ 9 On October 2, 2008, Mr. Carr sent a letter to Mr. Bla n offe ring to dismiss the complaint
ag ainst the L oyds in exchang e for $165,312, which re prese nted half of the funds that we re then in escr ow in Loyd v. Billit er , pending adjudication of Mr. Hess’ s attorney lien. On Dec ember 4, 2008, the circ uit court conducte d a hear ing on all pending motions in the instant

case , and on Dec ember 5, 2008, it enter ed an order g ranting judgme nt on the pleading s in favor of the L oyds. The circ uit court’s order fo u n d t h at Mr. Hess and the L oyds had no contra ct for repr esentation, that the L oyds had hired Kanoski & Associates, not Mr. Hess, to repr esent them, and that the complaint was leg ally defic ient. The circ uit court further found that Mr. Hess, throug h Mr. Carr, had instituted the lawsuit ag ainst the L oyds to hara ss them and g ain an adv an tag e ag ainst other parties. The circ uit court found that the L oyds wer e entitled to a sanction awa

rd pursuant to I llinois Supreme Court Rule 137 (ef f. Fe b. 1, 1994) and order ed the circ uit cler k to schedule a hear ing to deter mine the appropr iate amount. Finally
, the circ uit court denied Mr. Hess’s motion for leave to amend the complaint, finding that there wer e no differ ent alleg ations ag ains t the L oyds and that the proposed amende d complaint did not separ ately state cause s of action ag ainst the defe ndants he proposed to add. ¶ 10 On J anuar

y 29, 2009, the circ uit c ourt held a hear ing for the purpose of deter mining an appro p riate sanctions awa rd. Counsel for the L oyds, who is an associate of Kanoski & Associates, submitt ed an aff idavit of attorney fee s and costs itemiz ing the time spent in defe nding the lawsuit, for a total of 37.1 hours. C ounsel attested that his pra ct i ce involves hourly and contingent rates and that his usual and customary hou rl y ra t e i s $250 per hour, resulting in attorney fee s of $9,275. Counsel also attested to $114.82 in costs associate d with defe nding the lawsuit. The L oyds submitt ed an aff idavit attesting to $489.01 in cost s for missed work and mileag e to the hear ings. Mr. Hess and M r. C ar r d i d not file a counter aff

idavit or put on any

evidenc e at the he aring

. ¶ 11 On J anuar

y 30, 2009, the circ uit court enter ed an order re q u i ri n g M r. Hess to pay the L oyds the entire amount of fee s and costs that wer e submitt ed at the hear ing, but stated that the attorney fee s and costs wer e conting ent “upon prese ntation of a written rec eipt/canc elled chec k that said sums hav e been paid by defe ndants.” On Fe bruar y 17, 2009, Mr. Hess and Mr. Carr filed a notice of appea l. O n April 17, 2009, this c ourt, on its own moti on, enter ed

an order holding this appea l in abey an ce pending final dispositi on of the issue of attorney fee s due to the conting ent nature o f the circ uit court’s order

. On September 17, 2009, Mr. Hess, throug h Mr. Carr, filed a motion to vacate or set aside the sanctions and to dismiss with prejudice the L oyds’ claim for attorney fee s and expenses on the basis that the L oyds had not prese nted a r ece ipt showing that they had paid the attorney

fee s and costs. ¶ 12 On November 30, 2009, the L oyds filed a m o t i o n t o p artially rec onsider the sanc tions

awa rd, arguing that I llinois Supreme Court Rule 137 (ef f. Fe b. 1, 1994) d o es n o t re q uire
pay ment of the attorney fee s and expenses in order for them to be awa rded. The L oyds also
reque sted that the sanctions order be modified to specify t h at both Mr. Hess and Mr. Carr

-4-wer e liable to pay the sanctions. Acc ording to the motion to partially rec onsider, the L oy ds

wer e repr esente d on a conting ency fee basis and wer e to pay attorney fee s to Kan o s k i & Associates only if they wer e awa rded sanctions. In a supplemental filing, the L oyds produce d the conting enc y fee contra ct ref lecting this ag ree ment. After hear ing oral argument, the circ uit court enter ed an order on Marc h 2, 2010, g ranting the motion to partially rec onsider, deleting t h e require ment that the L oyds produce proof of pay ment prior to the sanctions

awa rd, and specify

ing that Mr. Hess and Mr. Carr wer e both liable for the sanct i o n s

. This
appea l was subseque ntly

reinstated. ¶ 13 On Oc t ober 15, 2010, this court issued its decision in Loyd v. Billit er , No. 5-09-0065 (Oc t. 15, 2010) (unpublished order under Supreme Court Rule 23). In that decision, this court af firmed the order of the circ uit court of Montgome ry County which g rante d the L o y d s ’ petition to st rike Mr. H ess’s attorne y lien claim. Id . at 1. This court found a s follows:
“The rec ord also supports the trial court’s f inding that Hess’s employ ment contra ct with Kanoski & Associates would bar any claim he has for further compensation for his

wo rk on the L oyd litigation. Under the plain languag e of the contra ct, Hess has no proprieta ry rig ht or interest in the re prese ntation of plaintiffs.” Id . at 4. ¶ 14 I n a separ ate order in the Loyd v. Billit er appea l, No. 5-09-0065, thi s co u rt i m p o s ed sanctions on Mr. Hess and Mr. Carr pursuant to I llinois Supreme Court Rule 375 (ef f. Fe b. 1, 1994), noting that “the 4th District Appellate Court previously imposed sanctions ag ainst [Mr. Hess and Mr. Car

r] for appe alingthe dismissal of an invalid attorney ’s lien under the same circumstance s as the attorney ’s l ien on appea l in the case at bar” (Goldenhe rsh, P .J
., dissenting)

. Despite the ruling of this court and the prior sanctions awa rds, Mr. Hess and Mr. Carr chose to continue to prosec ute t h e instant appea l ag ainst the L oyds. On Fe bruar y 7, 2011, the L oyds filed a motion for sanctions on appea l, pursuant to I llinois Supreme Court Rule 375 (ef

f. F eb. 1, 1994), which is taken with the c ase.

¶ 15 ANALYSI S ¶ 16 1. J udg ment on the Pleading s ¶ 17 Mr. Hess argues that the circ uit court err ed in g ranting the L oy d s a j u d gm ent in their favor on the pleading s, pursuant to section 2-615(e ) of the Code (735 I L CS 5/2-615(e) (West 2008)). The standard of revie w for a judgme nt on the pleading s is de novo. Pek in Insurance Co. v. Allstate Insurance Co.
, 329 I ll. App. 3d 46, 49 (2002). “A motion for judgme nt on the pleading s tests the sufficie ncy of the pleading s by deter mining whether the plaintiff is entitled to the relief soug ht by his complaint.” Id

. at 49. In so doing, t h e trial court must examine all pleading s on file, taking as true any well-plea ded fac ts and rea sonable infere nces to be drawn there from, to deter mine whether the controve rsy may be decide d as a matter of law. TDC Dev elopment Corp. v. First Fede ral S a vi ngs & Loan Ass’n of Ottawa
, 204 I ll. App. 3d 170, 174 (1990) ( citing W alker v . State Board of Elections , 65 I ll. 2d 543, 552-53 (1976))

. “On ap p ea l
, the revie wing court must asce rtain whether the trial court corr ectly deter mined that the pleading s prese nted no issue of materia l fac t a nd, if there wer e no such issue, whether

the cour t corre ctly

enter ed the judg ment.” Pek in , 329 I ll. App. 3d at 49. ¶ 18 A plaintiff is require d to attach to his complaint any written instruments upon which his

-5-claim is based, and these are to be treated as part of the complaint itself. Gore v. Indiana

Insurance Co
., 376 I ll. App. 3d 282, 288 (2007) (citing 735 I L CS 5/2-606 (West 2006), and Bajwa v. Metropolitan Life Insurance Co.
, 208 I ll. 2d 414, 431 (2004))

. “Where alleg ations made in the body of the complaint conflict with f acts disclosed in the exhibi ts, the exhibi ts will c ontrol and the alleg ations will not be taken as true in evaluating the sufficie ncy of the complaint.” Gore , 376 I ll. App. 3d at 288 (citing Bajwa , 208 I ll. 2d at 431-32). ¶ 19 Her e, the exhibi ts attache d to the plaintiff’s complaint disclose t h at M r. Hess, and his attorney , Mr. C arr , have absolutely no basis on which to proc eed a g ainst the L oyds for the

same rea sons set forth in our previous order in Loyd v. Billit er , No. 5-09-0065 (Oc t. 15, 2010) (unpublished order under Supreme Court Rule 23). At the time that Mr. Hess worke d

on the L oyds’ medical malp ra ct ice case , Mr. Hess was an employ ee of Kanoski & Associates. His employ

ment contra ct wit h Kanos k i & Associates clear ly provides that the clients that Mr. Hess worke d for on behalf of Kanoski & Associates wer e the clients of the firm and not of the individual associa t e. T h e employ ment contra ct clea

rly states that Mr. Hess would be p ai d a salary and a bonus for the work he perf ormed for the clients of the firm. The L oyds enter ed into a written conting ency fee ag ree ment with Ka n o s k i & Associates, a

nd not with Mr. Hess. ¶ 20 Contrary

to the position of Mr. Hess and Mr. Carr befor e the circ uit c ourt and ag ain on
appea l, a firm may enter into an att o rn ey -client relationship with a client pursuant to the
terms of I ll i n o i s S up re me Court Rule 721 (ef f. Sept. 30, 2009). In contra st, Mr. Hess is prohibited by the I llinois Rules of Professional Conduct from enter ing into an oral or implied conting ency fee contra ct with a client, as said contra cts are require d to be in writing

. I ll. Rs. Prof’l Conduct R. 1.5(c) (ef f. J an. 1, 2010). F or all of these rea sons, we find that Mr. H ess

was not entitled to an y at t o rn ey fee s from the L oyds and there fore cannot rec over for brea ches of contra ct, implied or written, a brea ch of promise, quantum meru i t , o r unjust enric hment. Addi t i o n al l y , as we found in Loyd v. Billit er , No. 5-09-0065 (Oc t. 15, 2010) (unpubl ished order under Supreme Court Rule 23), the L oyds rig htfully filed a peti t i o n t o strike Mr. Hess’s attorney lien and are not liable for any statutory , equitable, or contra ctual liens or interfe renc e with any contra ct, business ex pectation, or economic advanta g e. The circ uit court did not err in enter ing a judgme nt on the pleading s in favor of the L oyds on all
counts of the complaint and did not err in denying Mr. Hess, throug h his attorney Mr. Carr, leave to amend the complaint, as the proposed amendment mere ly added defe ndants and in
no way cure d the def

ects in the plea dings a g ainst the L oyds.

¶ 21 2. Sanctions in the Circuit Court ¶ 22 M r. He s s and Mr. Carr next argue that the circ uit court err ed in awa rdingsanction s pursuant to I llinois Supreme Court Rule 137 (ef f. Fe b. 1, 1994). “A circ uit court’s decision whether to impose Rule 137 sanctions is entitled to considera ble defe renc e upon revie w and will not be reve rsed absent an abuse o f d iscretion.” Spiegel v. Hollywood Towers Condominium Ass’n
, 283 I ll. App. 3d 992, 1001 (1996). “A circ uit court exceeds its discretion only wher e no rea sonable person would take the view adopted by it.” Id

. Rule 137 provides, in per

tinent part, as f

ollows:

-6-“The signature of an attorney or party constitutes a cer tificate by him that he has rea d the pleading
, motion or other paper ; that to the best of his knowledg e, information, and belief formed a fter r easona

ble inquiry

it is well grounded in f

act a nd is warr anted by

exis ting law or a g ood-fa ith argument for the extension, modification, or reve rsal of exis ting law, and t h at is not interposed for any improper purpose, such as to hara ss or to cause

unnece ssary delay or needle ss incre ase in the cost of litigation. *** I f a pleading
, motion,

or other paper is signe d in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signe d it, a repr esente d party , or b o t h
, an appropr iate sanction, which may include an order to pay to the other party or parties the
amount of rea sonable expenses incurre d beca use of the filing of the pleading
, motion or other pa per, inc luding a

rea sonable a

ttorney fee .” I ll. S. C t. R. 137 (eff. F eb. 1, 1994). ¶ 23 For the rea sons set forth above, we find that the circ uit court’s fi n d i n gs , t h at t h e complaint in its entirety was not war rante d by exis ting law and was interposed for an improper purpose, wer e not an abuse of discretion. We find the conduct of Mr. Hess, throug h his attorney , Mr. Carr, in sui n g a cl i ent of his former law firm for unpaid leg al fee s and tortious conduct for contesting his attorney lien when his employ ment contra ct clea

rly stated the firm’s clients wer e not his cli en t s an d h e was to be paid for his service s by salary
, amounts to eg reg ious, bad-f aith, and harassing pleading
, and it was well wi thin the circuit court’s discr etion to impose sanctions. ¶ 24 Mr. Hess, throug h Mr. Carr, arg ues that the circ uit court err ed in awa rding attorney fee s as a sanction beca

use t he L oyds are not obligate d to pay attorney fee s to their attorney

and thus cannot be said to have “incur red” such fee s. We find this arg ument to be without merit. The L oyds prese nted the circ uit court with the aff idavit of their counsel showing the amount

o f t i m e counsel spent defe nding this lawsuit and his usual and customary hourly rate. T h e L oyds also prese nted t h e contract wher eby their counsel, who repr esente d them in the medical malprac tice action, ag ree d to defe nd the lawsuit instituted ag ainst them by its former employ ee on a conting ency basis, wher e the L oyds would be liable for attorney fee s and costs only in the event that sanctions wer e awa rded. We find that this arr ang ement was appropr iate under the circ umstances of this case and that reve rsing the attorney fee sanctions awa rd under these circumstance s would discourag e law firms fr o m d ef ending their clients in eg reg ious situations such as this. Moreove r, this court has previously aff irmed an attorney fee sanction

awa rd in a case wher e the party rec eiving sanctions was repr esente d on a conting ency basis. See Cretton v. Protestant Mem orial Medic al Center, Inc.
, 371 I l l

. Ap p

. 3 d 841, 868-69 (2007). We find that the L oyds “incurr ed” f ees f or purpose s of Rule 137. ¶ 25 Mr. Hess, t h ro u gh Mr. Carr, further argues that the circ uit court err ed in imposing the sanctions awa

rd ag ainst Mr. Hess, who did not sign the sanctionable p l ea d i n gs. This
argument is also wholly without merit, as I llinois Supreme Court Rule 137 (ef f. Fe b. 1, 1994) clea rly states that sanctions can be imposed ag ainst the attorney who signe d the pleading
, the
repr esente d party , or both. I n a case such as this, wher e the repr esente d party is also an attorney , we find it perf

ectly rea sonable to impose the s an ct i o n against bot h Mr. Hess and Mr. Carr . The c ircuit court did not abuse its discretion in doing so. ¶ 26 Finally
, Mr. Hess, throug h Mr. Carr, argues that the circ uit court err ed in failing to hold an evidentiary hear ing on the i ssue of sanctions. W e disagree . A hea ringis nece ssary

for a

-7-trial court to dete rm i n e i f any untrue statement within a pleading was made without

rea sonable cause , unless the court’s deter mination can be made on the basis of the pleading s

or trial evidenc e. Century Road Builders, Inc. v. City of Palos Heights
, 283 I ll. App. 3d 527, 531 (1996). Although an evidentiar y hear ing should alway s be held when a sanction awa rd is based upon a pleading filed for an improper purpose, a hear ing i s unnece ssary if the sanction awa

rd is due to the unrea s o n ab l e n at u re of the pleading based on an objective standard. Id

. Fur

thermore
, althoug h an evidentiar y hear ing on the rea sonablene ss of any fee s to be awa rded is usually require d beca use the issue of rea sonablene ss is a matter o f proof which should be subjec t to cross-examination, the circ uit court’s acce ptance of unre butted aff idavits of counsel as to fee s, in the absenc e of an evidentiar y hearing, i s wi t h i n its discretion. Id .; cf. Heritage Pullman Bank & Trust Co. v. Carr
, 283 I ll. App. 3d 472, 481 (1996). ¶ 27 Her e, althoug h the circ uit court found that t h e co m p l ai n t was filed for an improper
purpose, it is also clea

r from the fac e of the pleading s that the complaint had no basis in law and, as such, was unrea sonable under an objective standard. An evidentiar y hear ing was not

nece ss ar y t o m ak e this deter mination. In addition, Mr. Carr had the opportunity to put on evidenc e as to the reasonablene ss of t he amount of fees at the hearing held on J anuar y 2 9
, 2009, and chose not to do so. The circ uit court did not err in acc epting the unrebutted aff i d av i t o f fee s from the L oyds. For all of these rea sons, we aff irm the circ uit court’s sanction aw ard in its entirety

.

¶ 28 3. Sanctions on Appea l ¶ 29 We now addre ss the L oyds’ motion for sanctions on appea l pursuant to I llinois Supreme Court Rule 375 (ef

f. Fe b. 1, 1994), which was filed on Fe bruar y 7, 2011, and taken with the

case

. We g rant the motion for sanctions, for all of the rea sons noted above. We rema nd this

case for the c ircuit court to dete rmine the amount of sanctions on appe al.

¶ 30 CONCLUSI ON ¶ 31 For the fore g oing rea sons, we aff irm the Dec ember 5, 2008, order of the circ uit court of Montgome ry County which g rante d jud g ment on the pleading s in favor of the L oyds. We aff irm the J anuar

y 30, 2009, order of the circ uit c ourt of Montgome ry County
, as amende d by an order dated Marc h 2, 2010, which awa rded sanctions to the L oyds, order ing Mr. Hess and Mr. Carr to pay the L oyds a tot al of $9,873.83 for attorney fee s and co s t s

. Fi n ally
, we g rant the L oyds’ motion for sanctions on appea l and rema nd for the circ uit court to deter mine the amount of sanc tions on appeal.

¶ 32 Affir

med; motion to supplement the rec ord o n appea l denied; motion for sanctions on
appea l gr anted; ca

use re manded.

¶ 33 J USTI CE GOL DENHERSH, conc urringin part and dissentingin part: ¶ 34 I concur with my colleagues conce rning the substantive issues in this appea l. As to their

-8-dispositi on on sanctions, I respe ctfully

dissent. ¶ 35 I note initially that in my opinion the rec ord does not sustain the circ uit court’s finding s that the complaint was not war rante d by exis ting l aw , but rathe r was interposed for an improper purpose. We all rec og nize the broad discretion the circ uit court posses ses in deter mining such questions a

nd the judge ’s hard and lonely position, and my conclusion is in no way a criticism of a long- serving distinguished and exemplary jurist. My chief conce rn is a weig htier issue. ¶ 36 Disag ree ing with an advocate’ s argument do es n o t equate with the conclusion that the advocate’s position was not “we ll gro u nded in fac t and is war rante d by exis ting law or a g ood-fa ith argument for the extension, modification, or reve rsal of exis ting law” (I ll. S. Ct. R. 137 (ef f. Fe b. 1, 1994)). The history of the common law is reple te with initially unpopular

an d reje cted positions. The common law’s most important jurisprudential philosophers

re co g nized the inhere nt evolutionary nature of the common law; among others, consid er Bla ckstone, Story
, Holmes, and Br andeis. The alterna tive is the dead hand of arc haic
prec edents and rules so rig htly ridiculed by Dickens. I t is appropr iate that we disag ree ; it is

err or to send a me ssag e that inhibits growth of our common law tr adition. ¶ 37 Fo r t h e rea sons stated above, I respe ctfully dissent from my colleagues on the i ssue o f sanctions.

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