Summary
In Niemerg, the Fifth District concluded, "[a]lthough a section 2-1401 proceeding may be a ‘new action’ for some purposes, such as pleading sufficiency and service of process, it is not a new case for purposes of section 2-1001(a)(2)."
Summary of this case from People v. CrenshawOpinion
Randall A. Wolter, Wolter, Beeman & Lynch, Springfield, for Appellants.
Brent D. Holmes, Heller, Holmes & Associates, P.C., Mattoon, James B. Wham, Wham & Wham, Centralia, for Appellees.
OPINION
WELCH, Justice.
This appeal arises out of a cause of action filed in the circuit court of Fayette County by Albert Niemerg, in his own right and on behalf of the working-interest owners of the Logue Heirs Well (the Well), and Niemerg Gas Company (the plaintiffs) against Gregg W. Bonelli, Gary Billingsley, Questar Petroleum, Inc., Thomas Falese, and Falese Oil Company (the defendants). Shortly after a settlement agreement had been reached among all the parties and a consent judgment had been entered against all the defendants by the circuit court of Fayette County, Gary Billingsley and Questar Petroleum, Inc. (Questar), filed a motion pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)). The motion sought to vacate the consent judgment, based on allegations of newly discovered evidence and the trial court's mistake of law. Billingsley and Questar also filed a motion for substitution of judge and a motion to stay all the enforcement proceedings on the consent judgment. All these motions were denied by the circuit court of Fayette County by an order entered August 15, 2001. Billingsley and Questar, of which Billingsley is president, appeal. The other defendants are not parties to this appeal.
The facts underlying this case are quite complicated and convoluted. We set forth those facts herein as simplistically as possible and only to the extent necessary for our disposition of the issues raised on this appeal. We recognize the risk of an oversimplification and the omission of facts from this disposition but assure the reader that we have carefully considered all the facts contained in the record on appeal. We also point out that, because this case was not tried but was settled by a consent judgment, many of the factual disputes have not been resolved.
The plaintiffs filed their amended complaint against the defendants on January 26, 2000. The complaint centers on a dispute over the ownership of a subsidiary gas pipeline used to carry natural gas from the Well to the pipeline of Natural Gas Pipeline Company of America, the main transporter of the gas from the Well. The complaint alleges that, pursuant to an agreement with the plaintiffs, Bonelli became the operator of the Well on April 21, 1997. Bonelli represented to the plaintiffs that he had acquired the subsidiary gas pipeline at a cost to himself of $161,002.17. The operating agreement between the plaintiffs and Bonelli provided that when Bonelli recouped these costs out of the production from the Well, he would transfer the ownership of the pipeline to the plaintiffs.
For a fee, Bonelli allowed Billingsley and Questar to use the pipeline to transport gas from neighboring wells that Billingsley and Questar owned and operated. Bonelli, an attorney, subsequently entered into an attorney/client relationship with Billingsley and Questar.
The complaint alleges that the Well produced sufficient revenue from the sale of gas to reimburse Bonelli for his costs in acquiring the pipeline. The plaintiffs repeatedly requested Bonelli to transfer the ownership of the pipeline to the plaintiffs but Bonelli refused. Accordingly, legal and equitable title to the pipeline passed to the plaintiffs by operation of law pursuant to the operating agreement entered into between the plaintiffs and Bonelli.
The complaint further alleges that Bonelli eventually resigned as the operator of the Well and that the plaintiffs replaced him with a new operator. Upon learning that the Well was being operated and gas therefrom was being sold by the new operator, Billingsley went to the well site and turned a valve on the gas pipeline, shutting off the flow of the gas from the Well. Apparently, Billingsley and Questar asserted their ownership of the gas pipeline and sought their appointment as the operator of the Well. Bonelli, Billingsley, and Questar then engaged in a scheme to interfere with the plaintiffs' ownership of the gas pipeline and to prevent the appointment of an operator of the Well. As a result, the plaintiffs have been unable to produce and sell any gas from the Well.
The complaint sought an injunction prohibiting the defendants from interfering in the operation of the Well, a declaratory judgment that the plaintiffs are the lawful owners of the gas pipeline, thereby quieting title to the property, an accounting, and compensatory and punitive damages.
The issues were joined and the case was set for a trial. Just before the trial, on August 10, 2001, the trial court granted the plaintiffs' motion in limine to estop Billingsley and Questar from asserting that they owned the pipeline, because in a deposition in a previous lawsuit, Billingsley had denied his ownership of the pipeline. On August 13, 2001, the trial court granted a partial summary judgment in favor of the plaintiffs and against the defendants on certain issues. The defendants were enjoined from interfering with the operation of the Well, and the title to the property was quieted in the plaintiffs. A judgment was entered in favor of the plaintiffs and against the defendants on the issue of liability regarding the allegations of interference with property rights. The case was set to proceed to a trial on the issues of compensatory and punitive damages for interference with property rights and on other remaining issues.
On the second day of the trial, August 15, 2001, the parties reached a settlement agreement, and a consent judgment order was entered. A judgment was entered in favor of the plaintiffs and against the defendants on the claim of interference with property rights. The judgment is quite detailed and requires numerous undertakings on the part of the defendants on behalf of the plaintiffs. Among other things, the defendants were ordered to pay to the plaintiffs the sum of $550,000, with $50,000 being due on or before September 15, 2001, and the remainder to be paid by December 1, 2001, with interest at the rate of 9%. The defendants further agreed to provide a blanket lien on, and collateral assignment of, all their assets, in order to secure the money judgment, and to refrain from transferring any property without the plaintiffs' consent. The plaintiffs agreed to refrain from executing on the judgment so long as the defendants remained in compliance therewith. The judgment order also provides, "Judge William J. Becker shall continue to exercise jurisdiction over this case and all matters pertaining to this case and in enforcing the terms of this judgment."
After the entry of this consent judgment, Bonelli hired an accountant to do an accounting of the proceeds of the Well to determine whether the $161,002.17 threshold set forth in the operating agreement requiring a transfer of ownership of the pipeline from Bonelli to the plaintiffs had been met. This accountant determined that it had not been met. The results of this accounting were provided to all the parties, including Billingsley and Questar.
On December 4, 2001, Billingsley and Questar (the appellants) filed a motion pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2000)), seeking to vacate the consent judgment of August 15, 2001. The appellants claimed that because the Well had not produced sufficient revenue to reimburse Bonelli for his expenses in the amount of $161,002.17, the ownership of the pipeline had never passed to the plaintiffs, Bonelli had at all times owned the pipeline, and the appellants therefore could not be guilty of interfering with the plaintiffs' property rights in the pipeline. The appellants argued that the accounting constitutes newly discovered evidence sufficient to justify vacating the judgment and reopening the case pursuant to section 2-1401 of the Code. They also argued that even if the plaintiffs' allegations of liability are true, there is no evidence of any damages suffered by the plaintiffs and that any finding to the contrary is against the manifest weight of the evidence. They further claimed that vacating the judgment and reopening the case would prevent an unjust result in that the evidence does not support a finding of liability against the appellants. The appellants asserted that they settled only under undue pressure. They argued that vacating the consent judgment and setting the matter for a trial would result in no prejudice to the plaintiffs but would ensure a just result.
On the same date, the appellants filed a motion for substitution of judge as a matter of right pursuant to section 2-1001(a)(2) of the Code (735 ILCS 5/2-1001(a)(2) (West 2000)). They argued that a section 2-1401 petition is a new action and that they are entitled to a substitution of judge as a matter of right.
The appellants also filed a motion to stay further proceedings in the cause pending a ruling on the section 2-1401 petition to vacate. Because the plaintiffs believed that the defendants were in default of the consent judgment, they had started enforcement proceedings thereon.
These motions were heard and decided on December 14, 2001. The trial court denied the appellants' motion for substitution of judge, on the ground that they had waived any such right by virtue of the provision of the consent judgment which provides that Judge Becker shall retain jurisdiction over all matters pertaining to the case. The trial court also denied the appellants' section 2-1401 motion and their motion to stay.
The appellants' first argument on appeal is that the trial court erred in denying their motion for substitution of judge, which had been filed pursuant to section 2-1001(a)(2) of the Code. That section provides that a party is entitled to a substitution of judge as of right when the application is made before the trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case. 735 ILCS 5/2-1001(a)(2) (West 2000). A trial court has no discretion to deny a proper motion for substitution of judge as of right. Rodisch v. Commacho-Esparza, 309 Ill.App.3d 346, 350, 242 Ill.Dec. 837, 722 N.E.2d 326 (1999). The issue of whether there had been a ruling on a substantial issue in the case is a question of law to which the appellate court applies a de novo standard of review. Rodisch, 309 Ill.App.3d at 350, 242 Ill.Dec. 837, 722 N.E.2d 326. The policy behind the rule requiring a motion for substitution to be presented before the judge has ruled on any substantial issue in the case is to preclude litigants from "judge-shopping" after having formed an opinion that the judge may be unfavorably disposed toward the litigant's cause. In re Daniel R., 291 Ill.App.3d 1003, 1014, 225 Ill.Dec. 900, 684 N.E.2d 891 (1997).
The question presented in the instant appeal is whether, by virtue of having heard and decided the underlying case that the appellants sought to reopen, Judge Becker can be deemed to have ruled on a substantial issue in the section 2-1401 proceeding. The answer to this question hinges on whether, for purposes of a section 2-1001(a)(2) motion for substitution of judge, the section 2-1401 petition is a continuation of the underlying cause or a new proceeding to which the right of substitution applies.
The appellants correctly argue that although a section 2-1401 petition must be filed in the same proceeding in which the judgment sought to be vacated was entered, it is not a continuation thereof but is a new proceeding subject to the usual rules of civil procedure. 735 ILCS 5/2-1401(b) (West 2000); Klein v. La Salle National Bank, 155 Ill.2d 201, 204, 184 Ill.Dec. 420, 613 N.E.2d 737 (1993). As explained in Childers v. Kruse, 297 Ill.App.3d 70, 77, 231 Ill.Dec. 682, 696 N.E.2d 1253 (1998), although a section 2-1401 petition arises out of the same proceeding in which the judgment to which it is directed was entered, it is a collateral attack on the judgment. The appellants conclude that since a section 2-1401 motion to vacate is a new action to which the usual rules of civil procedure apply and since section 2-1001(a)(2) allows a substitution of judge as a matter of right in a new action in which the trial judge has not yet ruled on any substantial issue, it follows that a party filing a section 2-1401 motion to vacate must be granted a substitution of judge upon request, provided that the trial judge has not ruled upon any substantial issue in the section 2-1401 proceeding.
While the appellants' argument appears logical, it is clear to us that to allow a substitution of judge in a section 2-1401 proceeding would defeat the policy behind the rule requiring a motion for substitution to be presented before the judge has ruled on any substantial issue in the case: to preclude litigants from "judge-shopping" after having formed an opinion that the judge may be unfavorably disposed toward the litigant's cause. See In re Daniel R., 291 Ill.App.3d 1003, 1014, 225 Ill.Dec. 900, 684 N.E.2d 891 (1997). Furthermore, it is equally clear to us that, in the interest of judicial economy, it is practical that the same judge who heard the underlying case should hear the section 2-1401 petition. Therefore, we reject the appellants' argument that they were entitled to a substitution of judge as a matter of right in their section 2-1401 proceeding. Although a section 2-1401 proceeding may be a "new action" for some purposes, such as pleading sufficiency and service of process, it is not a new case for purposes of section 2-1001(a)(2).
We find In re Marriage of Kozloff, 101 Ill.2d 526, 79 Ill.Dec. 165, 463 N.E.2d 719 (1984), instructive on this issue. In that case, a divorce proceeding, the husband filed a postdecree petition to modify the maintenance provisions of the decree. When the petition was assigned to a judge who had previously ruled against the husband in the divorce proceeding, the husband filed a motion for substitution of judge. The motion was denied and the husband appealed. The appellate court ruled that each postdecree petition constituted a new proceeding and that the husband was therefore entitled to a substitution of judge so long as the judge had not ruled on a substantial issue in that postdecree proceeding. In re Marriage of Kozloff, 113 Ill.App.3d 1161, 75 Ill.Dec. 378, 457 N.E.2d 168 (1983) (unpublished order under Supreme Court Rule 23 (87 Ill.2d R. 23)). The Illinois Supreme Court reversed, stating:
"We cannot accept the appellate court position, because in our judgment it would lead to a serious abuse of the venue act. This court has long condemned a litigant's attempt to seek a change of venue after he has formed an opinion, based upon the court's adverse rulings, that the judge may be unfavorably disposed towards his cause. [Citations.] Under the appellate court rule, however, a change of venue can be sought on any post[ ]decree petition if the litigant is dissatisfied with the judge's prior rulings on other, related petitions despite the fact that all of the petitions emanate from the same dissolution proceedings. * * * Taken to its logical extreme, a resourceful litigant In re Marriage of Kozloff, could repeat the process until he found a judge he considered sympathetic to his cause. Obviously, such maneuvering is anathematical to the efficient use of judicial resources." 101 Ill.2d at 530-31, 79 Ill.Dec. 165, 463 N.E.2d 719.
The reasoning of In re Marriage of Kozloff is just as compelling in the case at bar. Like postdecree divorce proceedings, a section 2-1401 proceeding will always involve the same parties as the underlying case and will always relate back to the original judgment in the underlying case. See In re Daniel R., 291 Ill.App.3d 1003, 1016, 225 Ill.Dec. 900, 684 N.E.2d 891 (1997) (distinguishing proceedings under the Juvenile Court Act of 1987). It is filed in the same case in which the judgment was entered, and the pleading bears the same docket number. We conclude that a section 2-1401 petition is not a new cause of action for purposes of section 2-1001(a)(2). The trial court did not err in denying the appellants' motion for substitution of judge.
The appellants' remaining arguments are considered and rejected in an unpublished portion of this decision.
******UNPUBLISHED TEXT FOLLOWS******
[The following text is nonpublishable under Supreme Court Rule 23 (166 Ill.2d R. 23).]
Furthermore, as the trial judge found, the appellants had expressly waived their right to a substitution of judge by agreeing in the consent judgment to the following: "Judge William J. Becker shall continue to exercise jurisdiction over this case and all matters pertaining to this case and in enforcing the terms of this judgment." (Emphasis added.) A party cannot complain of a judgment, decree, or order to which he has consented. Jackson v. Ferolo, 4 Ill.App.3d 1011, 1014, 283 N.E.2d 247 (1972). A decree entered by the consent of the parties is binding upon them and cannot be amended or vacated without the consent of both parties. City of Marseilles v. Radke, 287 Ill.App.3d 757, 760, 223 Ill.Dec. 181, 679 N.E.2d 125 (1997). The judgment entered in the case at bar recites that it was entered pursuant to the settlement agreement of the parties, and there has been no claim or showing to the contrary. However, a court will vacate a consent decree on the motion of only one party upon a showing of fraudulent misrepresentation or coercion in the making of the agreement, the incompetence of one of the parties, gross disparity in the position or capacity of the parties, errors of law apparent on the face of the record, or newly discovered evidence. Radke, 287 Ill.App.3d at 760, 223 Ill.Dec. 181, 679 N.E.2d 125. The appellants make no such claim with respect to the venue provision of the consent judgment. The appellants are bound by the terms of the venue provision contained in the settlement agreement and judgment to which they consented.
The appellants next argue that the trial court erred in denying their section 2-1401 petition to vacate the judgment and reopen the case. Section 2-1401 of the Code provides for relief from judgments after 30 days from the entry thereof. 735 ILCS 5/2-1401 (West 2000). The purpose of the proceeding is to bring before the court facts that were not known at the time the judgment was entered and that, if known, would have prevented the entry of the judgment. S.C. Vaughan Oil Co. v. Caldwell, Troutt, & Alexander, 321 Ill.App.3d 447, 448-49, 255 Ill.Dec. 1, 748 N.E.2d 705 (2001). The aim of the court in applying this section is to achieve justice, not to give the litigant a new opportunity to do that which should have been done in an earlier proceeding or to relieve the litigant of the consequences of his mistake or negligence. In re Marriage of Broday, 256 Ill.App.3d 699, 705, 195 Ill.Dec. 326, 628 N.E.2d 790 (1993). Nevertheless, a liberal construction of the statute is used to achieve justice. Cartwright v. Goodyear Tire & Rubber Co., 279 Ill.App.3d 874, 883, 216 Ill.Dec. 305, 665 N.E.2d 365 (1996).
To be entitled to relief, the petitioner must show by a preponderance of the evidence (1) that the petitioner has a meritorious defense or claim, (2) that the petitioner exercised due diligence in discovering the defense or claim in the original action, (3) that despite that due diligence and through no fault on the part of the petitioner, the error of fact or valid claim or defense was not made apparent to the trial court at the time of the original action, and (4) that the petitioner exercised due diligence in filing the section 2-1401 petition. Cartwright, 279 Ill.App.3d at 882, 216 Ill.Dec. 305, 665 N.E.2d 365. Whether the petition should be granted is within the sound discretion of the trial court. S.C. Vaughan Oil Co., 321 Ill.App.3d at 449, 255 Ill.Dec. 1, 748 N.E.2d 705.
The appellants first argue that the trial court erred in denying their section 2-1401 petition because the court failed to consider the merits of the petition and denied it based on the mistaken belief that it could not, under any circumstances, vacate a consent judgment. The appellants' contention is belied by the record. The trial court did not deny the appellants' petition solely on the ground that it could not, under any circumstances, vacate a consent judgment. Instead, the trial court clearly considered the merits of the petition. For example, at the hearing on the petition, the trial court discussed its finding that the appellants had not exercised due diligence in discovering and presenting the "newly discovered evidence" that Bonelli had not been reimbursed for his expenses and therefore ownership of the pipeline had not passed to the plaintiffs. Indeed, the trial court pointed out that this "newly discovered" evidence had been available prior to the entry of the consent judgment. The appellants had simply failed to seek it. The trial court also pointed out that the appellants could not use a section 2-1401 petition to relitigate issues which had been previously litigated or rulings of law which could have been appealed, such as the issues of damages and the finding of estoppel regarding Billingsley's ownership of the pipeline. The trial court also discussed at length its findings with respect to the appellants' claim that the settlement agreement had been entered into under duress. Accordingly, we reject the appellants' argument that the trial court failed to consider the merits of the section 2-1401 petition.
The appellants alternatively argue that, assuming the trial court did consider the merits of the section 2-1401 petition, it abused its discretion in failing to grant it. The appellants assert that they not only presented newly discovered evidence with their section 2-1401 petition but were diligent in doing so. The trial court disagreed. We affirm the trial court.
In order to entitle a petitioner to relief under section 2-1401, the newly discovered evidence must meet the following requirements: (1) it must be so conclusive that it would probably change the result if a new trial is granted, (2) it must be discovered after the trial, (3) it must be of such a character that it could not have been discovered prior to the trial in the exercise of due diligence, (4) it must be material to the issues, and (5) it must not be merely cumulative to the trial evidence. People v. Hallom, 265 Ill.App.3d 896, 906, 202 Ill.Dec. 897, 638 N.E.2d 765 (1994). For a petitioner to obtain relief under section 2-1401, the petitioner must show that the newly discovered facts could not reasonably have been discovered at the time of or prior to the entry of the judgment from which relief is sought. Gas Power, Inc. v. Forsythe Gas Co., 249 Ill.App.3d 255, 260, 188 Ill.Dec. 389, 618 N.E.2d 959 (1993). The burden of proof on these factors is with the movant, and the determination of the existence of these factors rests within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. Hallom, 265 Ill.App.3d at 906, 202 Ill.Dec. 897, 638 N.E.2d 765.
In the instant case, the trial court found that the appellants had failed to demonstrate that the accounting evidence could not have been discovered in the exercise of due diligence prior to the entry of the judgment. There is nothing in the record or in the appellants' brief on appeal to indicate that the trial court's finding constitutes an abuse of discretion. The "newly discovered evidence" consists of an accounting of monies received by Bonelli from operating the Well from 1997 to 1998. The plaintiffs filed their amended complaint in January 2000. The consent judgment was not entered until August 15, 2001. The information that formed the basis of the accounting was available for discovery anytime after 1998. The appellants present no reason or excuse for their failure to discover this information or to have the accounting performed prior to the settlement and the entry of a judgment. They were parties to the action and could have simply filed a discovery motion to obtain the financial records if they could not have been obtained any other way. A party cannot fail to conduct discovery in a case and then, after the entry of the judgment, seek to vacate the judgment based on evidence that was discoverable prior to the judgment. The trial court did not err in finding that the appellants had failed to exercise due diligence in discovering and presenting the "newly discovered evidence," and the court did not err in denying their section 2-1401 petition on this basis.
The appellants next argue that the trial court erred in failing to grant their section 2-1401 petition on the basis that the court had made a clear legal error in ruling, on August 10, 2001, that the appellants were estopped from asserting their ownership of the pipeline by virtue of Billingsley's previous deposition testimony that they did not own the pipeline. We note that in the appellants' section 2-1401 petition this point was not raised as a basis for vacating the consent judgment, nor was it argued at the hearing thereon. It is raised for the first time on appeal. It is, therefore, waived. See Parks v. Kownacki, 193 Ill.2d 164, 180, 249 Ill.Dec. 897, 737 N.E.2d 287 (2000).
In any event, a section 2-1401 petition is not intended to provide for the review of an order from which a party could have taken a timely appeal, and such a petition is not to be invoked as a substitute for a party's right to appeal. Universal Outdoor, Inc. v. City of Des Plaines, 236 Ill.App.3d 75, 80-81, 177 Ill.Dec. 515, 603 N.E.2d 585 (1992). Thus, a section 2-1401 petition is not appropriate for the review of errors of law. Universal Outdoor, Inc., 236 Ill.App.3d at 81, 177 Ill.Dec. 515, 603 N.E.2d 585.
Finally, the appellants argue that the trial court should have granted their petition in the interests of fairness and justice and to ensure a fair result. The appellants are correct that the purpose of a section 2-1401 proceeding is to achieve just and equitable results and to avoid unjust, unfair, or unconscionable circumstances. Gas Power, Inc. v. Forsythe Gas Co., 249 Ill.App.3d 255, 258, 188 Ill.Dec. 389, 618 N.E.2d 959 (1993). Accordingly, courts have held that even where a party has failed to act with due diligence, that circumstance alone would not mandate a denial of the petition. Gas Power, Inc., 249 Ill.App.3d at 263, 188 Ill.Dec. 389, 618 N.E.2d 959. A trial court may still grant the petition in the exercise of its equitable powers. Gas Power, Inc., 249 Ill.App.3d at 263, 188 Ill.Dec. 389, 618 N.E.2d 959 (newly discovered evidence of a conspiracy involving unconscionable conduct). The trial court in the instant case declined to do so. We find no abuse of discretion.
The appellants assert that the consent judgment is unjust because the plaintiffs suffered no monetary damages as a result of the appellants' conduct, yet the appellants were "ordered" to pay to the plaintiffs $550,000 in damages and attorney fees, and the appellants were under extreme duress to settle the case, and did so, disadvantageously to themselves. They assert that the plaintiffs had failed to disclose opinion witnesses until the day of the trial, that none of these witnesses had been deposed by the appellants, that no case-management order had been entered setting a date for the disclosure of witnesses, and that the statutorily required hearing on the punitive damages claim had not been held. Finally, they argue that, by virtue of this extreme duress, the appellants agreed to pay damages for which they were not legally liable. Accordingly, they argue, the consent judgment is unjust and unconscionable.
It is noteworthy that the appellants point to no unconscionable conduct on the part of the plaintiffs. The appellants did not seek a continuance to depose witnesses or to conduct a hearing on punitive damages. We note that the plaintiffs' amended complaint clearly sought punitive damages, yet the appellants did not, apparently, move for a hearing on the issue. Nor, apparently, did the appellants at any time request a case-management conference. Instead, the appellants sought to settle the case on the best terms possible, to avoid a possibly devastating result at a trial. This is hardly the type of case requiring the trial court's exercise of its equitable powers to avoid an unjust or unconscionable result. The trial court did not abuse its discretion in denying the appellants' section 2-1401 petition.
Finally, the appellants argue that the trial court abused its discretion in denying their motion for a stay pending the determination of the section 2-1401 petition. However, the trial court denied the section 2-1401 petition on the date of the hearing, before it addressed the motion to stay. Under these circumstances a stay was neither appropriate nor necessary. The appellants' counsel so admitted at the hearing. The trial court did not abuse its discretion in denying the appellants' motion for a stay.
As a final matter, we turn to the plaintiffs' motion for sanctions, which we have previously ordered taken with the case. The plaintiffs seek sanctions against the appellants and their attorneys pursuant to Supreme Court Rule 375(b) (155 Ill.2d R. 375(b)). Supreme Court Rule 375(b) provides for the imposition of sanctions where an appeal was not taken in good faith but for an improper purpose, such as to harass or to cause an unnecessary delay or a needless increase in the cost of litigation. 155 Ill.2d R. 375(b). The rule further provides that an appeal will be deemed to have been taken for an improper purpose when the primary purpose of the appeal is to delay, harass, or cause needless expense. 155 Ill.2d R. 375(b). The plaintiffs assert that the appellants' appeal was not taken in good faith but was interposed for the improper purposes of causing an unnecessary delay and increasing the plaintiffs' costs of litigation. In their memorandum in support of their motion, the plaintiffs assert that the appeal was taken to cause delay and to increase the plaintiffs' costs of litigation in hopes of winning concessions from the plaintiffs regarding the enforcement of the underlying consent judgment. The plaintiffs seek sanctions, including the assessment of plaintiffs' attorney fees and expenses incurred in defending the appeal.
We agree with the plaintiffs that the actions of the appellants and their attorneys in prosecuting this appeal are questionable. Nevertheless, sanctions for bad-faith appeals are penal and should be applied only to those cases falling strictly within the terms of the rule permitting sanctions. Beverly v. Reinert, 239 Ill.App.3d 91, 101, 179 Ill.Dec. 789, 606 N.E.2d 621 (1992). There is simply insufficient evidence before us to conclude that a reasonably prudent attorney acting in good faith would not have prosecuted this appeal. See Ben Franklin Financial Corp. v. Davis, 226 Ill.App.3d 414, 421-22, 168 Ill.Dec. 457, 589 N.E.2d 857 (1992). Accordingly, we deny the plaintiffs' motion for sanctions.
[The preceding text is nonpublishable under Supreme Court Rule 23.]
For the foregoing reasons, the judgment of the circuit court of Fayette County is hereby affirmed, and the plaintiffs' motion for sanctions is denied.
Judgment affirmed; motion for sanctions denied.
DONOVAN and CHAPMAN, JJ., concur.