People ex rel. West v. Herrendorf

JUSTICE JOHNSON

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County denying the motion of respondent, Joshua Herrendorf, for sanctions against petitioner, Pamela West, and her counsel, the State’s Attorney, pursuant to section 2 — 611 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611). The sole issue presented for review is whether the trial court erred in denying Herrendorf s motion for the imposition of sanctions and costs pursuant to section 2 — 611 of the Code.

We affirm.

On February 1, 1985, West signed a complaint naming Herrendorf as the father of her child, Lauren L. West. Lauren was born July 4, 1983. The complaint was filed by the State’s Attorney on June 10, 1985, Herrendorf was served by alias summons on February 27,1986.

In response to interrogatories filed by Herrendorf on April 28, 1986, West also named Anthony Lazzaroni as a person with whom she had had sexual relations within 60 days of the date of conception. West stated that the date of conception was September 1979. The date was later amended to September 1982 in West’s supplemental interrogatories.

On February 10, 1987, West filed a “Motion to Compel Blood Tests” to which Herrendorf objected. The court ordered that he take the blood tests. On that same day the State’s Attorney was granted leave to file an amended complaint alleging that Anthony Lazzaroni or Glen Udell could be the father of the child. Separate suits, however, had to be filed against these two defendants as the clerk of the court’s record system could not accommodate multiple defendants.

West filed supplemental responses to interrogatories on March 9, 1987, in which she stated that she had had sexual intercourse with Udell on either October 3 or 10, and with Lazzaroni on October 18 and 19, 1982.

At West’s deposition, she testified that the reason she could not name Lazzaroni or Udell in the initial complaint was because personnel from the Illinois Department of Public Aid and someone from the State’s Attorney’s office advised her that she could not name three individuals as potential fathers in a paternity suit. West also testified that she believed Herrendorf was the father of her child because she felt that she had conceived on September 19, 1982.

On March 11, 1987, the suit against Herrendorf was voluntarily dismissed after he was excluded as a potential father by the blood test. Udell was also scientifically excluded as a possible father. The suit against Lazzaroni is still pending as his blood test resulted in a paternity index.

On March 7, 1987, Herrendorf filed a motion for costs, pursuant to section 2 — 611. Herrendorf alleged that West pleaded statements which she and the State’s Attorney knew or reasonably should have known were untrue. West alleged that Herrendorf was the father which she knew or reasonably should have known was untrue. Herrendorf also argued that the amended section 2 — 611 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) should apply retroactively to West’s complaint which would allow the imposition of sanctions against both West and the State’s Attorney. The trial court denied Herrendorf’s motion for sanctions. In so holding, the trial court also refused to apply the amended section retroactively. It is from this decision that Herrendorf appeals.

Section 2 — 611 provided, in pertinent part, as follows:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611.)

In November 1986, the section was amended, rendering its scope broader than the prior version. (Mucklow v. John Marshall Law School (1988), 176 Ill. App. 3d 886, 897.) The amended section reaches every document filed with the court and requires the motions or pleadings be supported by “reasonable inquiry.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) It also provides for the imposition of sanctions against the attorney whose signature appears on the pleadings or motions as well as the party being represented.

Herrendorf first contends that the amended section should be applied retroactively to the complaint filed on June 10, 1985, naming him as the father of the child. Application of the amendment would permit sanctions against the State’s Attorney as well as West. We do not believe that the amended section should be applied retroactively.

The Illinois Supreme Court in Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, stated the general rule with respect to the retroactive application of statutes:

“When a change of law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure *** without regard to whether or not the action has been instituted, unless there is a saving clause as to existing litigation. [Citations.] Changes in procedure or existing remedies will not be applied retrospectively, however, where a vested, constitutionally protected right will be deprived by such application.” (Maiter, 82 Ill. 2d at 390-91.)

The amended section 2 — 611 does not merely affect the remedy or existing procedure of law but creates an obligation which did not previously exist. Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 835.

Herrendorf s reliance on People v. Frieder (1980), 90 Ill. App. 3d 116, is misplaced. In Frieder, the court held that an amendment to the predecessor statute (Ill. Rev. Stat. 1975, ch. 110, par. 41) of section 2 — 611 must be given retroactive effect. The court, however, was only concerned with the new burden of proof the amendment imposed. (Frieder, 90 Ill. App. 3d at 120.) The amendment considered in Frieder did not impose new obligations and liabilities but merely changed existing remedies. Board of Education v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 475-76.

In the instant case, this amended section imposes new obligations rather than adding a remedy for alleged violations. (Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 835.) We, therefore, find that the amended section should not be given retroactive effect.

Even assuming, arguendo, that the amended section 2 — 611 is applied to the facts in this case, we find that the State and West were still within the purview of the statute. The former section 2 — 611 provided that the pleadings should be based on “reasonable cause.” Similarly, the amended section requires that the filing must be “well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.

Prior to the time West received the results of the paternity test, it was a question of fact as to whether Herrendorf was the child’s natural father. Once the results determined that Herrendorf was not the father of the child, the lawsuit against him was no longer well grounded in fact and was immediately dismissed against him. Under either version of the statute, therefore, we find that West and the State were within its scope. We will, however, address Herrendorf’s various contentions.

Herrendorf maintains that he is entitled to fees. Fees may be assessed against a litigant pleading false statements without reasonable basis under the section prior to the 1986 amendment. (People ex rel. Reliford v. Roberts (1983), 112 Ill. App. 3d 351, 353.) Since the section is of a penal nature, its terms will only be invoked where all of the allegations may be construed as falling strictly within the terms of the provision. (Mucklow, 176 Ill. App. 3d at 897.) The trial court’s decision assessing fees is entitled to great weight and will not be disturbed unless there has been an abuse of discretion. Wollschlager v. Sundstrand Corp. (1986), 143 Ill. App. 3d 347, 352.

Herrendorf asserts that the trial court erred in denying his motion for sanctions because, he alleges, West and two assistant State’s Attorneys knew prior to West’s filing the complaint that he was not the father of her child.

Herrendorf bases this assertion on several factors: (1) according to medical records the “father” of the child was present at the hospital prior to, at the time of, and subsequent to the birth of the child and Herrendorf alleges that he was never at the hospital; (2) West told personnel at the Illinois Department of Public Aid and two assistant State’s Attorneys that there were three potential fathers prior to filing the original complaint; and (3) West stated that she had had intercourse with Herrendorf on September 16 and 19, 1982, and the child was born July 4, 1983, approximately 2 weeks longer than the usual nine-month gestation period.

The first factor raised by Herrendorf, that according to hospital records, the “father” was present at the hospital, cannot be a basis for sanctions against West. Herrendorf neglects to point out that nowhere in the records is this “father” named or identified. Simply because a hospital record states that the “father” was at the hospital does not mean that the party at the hospital was the child’s natural father. Further, at that time, West did not know who was the child’s father. The father’s identity, in fact, is still at issue. We do not find an unsubstantiated notation on a hospital record an adequate basis for sanctions against West.

Herrendorf next argues that West knew of three potential fathers prior to filing her complaint. Two of these parties were not named in the initial complaint. The Paternity Act (now repealed) provided, in pertinent part, that “[t]he complainant, under oath or affirmation, shall accuse a person of being the father of such child.” (Ill. Rev. Stat. 1983, ch. 40, par. 1354.) According to the State’s Attorney, courts and administrative agencies construed this section as prohibiting a complainant from filing against multiple defendants. Further, West testified that she was informed by someone from the Illinois Department of Public Aid, when she went for her initial intake interview, that she could only file against one party. West also testified that she felt she had conceived when she had intercourse with Herrendorf on September 19.

West correctly points out that in order to determine the truth of a paternity claim a blood test must be taken. (People ex rel. Reliford v. Roberts (1983), 112 Ill. App. 3d 351, 354.) However, “[t]he State certainly could not compel defendant to submit to a blood test without invoking the authority of a court, and the State could invoke this authority only by filing suit.” (Reliford, 112 Ill. App. 3d at 354.) West, therefore, appropriately filed a motion to compel the blood tests to determine whether Herrendorf was the father of her child. After results indicated that Herrendorf was not the father, the suit against him was voluntarily dismissed.

Herrendorf further complains that the motion to compel the blood tests was not made until almost two years after the suit was filed. Thus, he contends that he was subject to almost two years of unnecessary legal fees and anguish. This, however, cannot be a basis for sanctions in the instant case. As the trial court noted, Herrendorf could have taken a blood test to show an exclusion as soon as the complaint was filed instead of objecting to West’s motion. Herrendorf’s argument for sanctions based on this contention also fails.

Finally, Herrendorf argues that West knew that he was not the father since she had intercourse with Lazzaroni, without the benefit of contraception, within three or four days of the identified date of conception. The child was born July 4, 1983. West testified that she believed that she conceived when she had intercourse with Herrendorf on September 19, 1982, and that the birth control device that she was wearing may have been ill-fitting. Herrendorf contends that since birth occurred more than nine months after she had intercourse with him, compounded by the fact that her physician advised her that the date of conception was in October, is sufficient to prove that she had knowledge that he could not have been the father. We do not find that this argument serves as a basis for sanctions.

As the trial court correctly pointed out, West actually believed she conceived on September 19. It is not an abuse of discretion to deny attorney fees where, even if the statement is false, the plaintiff, nonetheless, has reason to believe that the statement was true. (In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 638.) Obstetrics is not an exact science. Physicians may not in all cases predict the exact day of conception. It is also not unusual for birth to occur either before or after the nine-month period. We find that the trial court did not abuse its discretion in finding that West and her attorney acted within the purview of the section.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

JIGANTI, P.J., concurs.