author: JUSTICE FREEMAN

text:
    DIANE HARRIS, Petitioner-Appellant, v. RICHARD HARRIS, Respondent (Seymour Regal et al., Appellees).
    First District (3rd Division)
    No. 1—88—2500
    Opinion filed April 4, 1990.

      Michael S. Schiffman and James E Driscoll, both of Driscoll & Driscoll, of Schaumburg, for appellant.
    Gerald D. Chiss and Elliott D. Hartstein, both of Cohon, Raizes & Regal, of Chicago, for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Petitioner, Diane Harris, appeals an order of the trial court striking her pleadings and entering a judgment of default. 107 Ill. 2d R. 219(c).

In 1980, petitioner retained Seymour Regal and the law firm of Cohen, Raizes & Regal to represent her in a dissolution of marriage. In 1985, petitioner retained new counsel. Shortly thereafter, Regal filed a petition for attorney fees and costs.

On December 22, 1986, Regal filed a notice of deposition, scheduling petitioner’s discovery deposition for January 6, 1987, and requesting the production of certain documents on or before January 2. Petitioner’s attorney (Driscoll) advised Regal that January 6 was not a convenient date and agreed to provide him with an alternative. The fee petition hearing was scheduled for February 4, 1987.

In compliance with Supreme Court Rule 201(k) (107 Ill. 2d R. 201(k)), on January 16, Regal wrote a letter to petitioner’s attorney, reminding him of the hearing date and of the fact that he was to contact him with an alternate date for the deposition. Regal sent a second letter on February 5, wherein he informed petitioner that the hearing had been continued to April 7 and that petitioner had still not contacted him to reschedule the deposition.

By agreement of the parties, the deposition was rescheduled for March 18; however, according to Regal, petitioner had not agreed to produce the documents. On March 11, Regal filed a motion to compel production of documents. Contrary to Regal’s statement in his brief, petitioner filed a response to the motion.

In response to the motion, the court ordered petitioner to appear for the deposition on April 16 and continued the fee hearing to April 24. A second order, entered on March 23, ordered petitioner to comply with the request to produce, on or before April 9. Petitioner did not produce the documents, nor did she appear for the April 16 deposition.

On April 20, Regal filed a motion for remedies for failure to comply with orders and rules. In response to the motion, petitioner was ordered to produce all documents not later than 12 noon the following day and to appear for the deposition on April 23, 1987. The trial court rejected petitioner’s argument that Regal already had the requested documents as a result of his representation of her in the dissolution case. (Kathleen Rice, another attorney in Driscoll’s firm, appeared at the motion in Driscoll’s stead.)

On April 21, petitioner’s attorney, Driscoll, filed an emergency motion to reconsider the April 20 order. At the hearing on the motion, petitioner’s attorney alleged that petitioner would not be able to attend the April 23 deposition because, due to back problems, she had been bedridden since the early part of April. Petitioner’s attorney offered to produce, for the court and Regal, an affidavit from petitioner’s doctor attesting her illness and expected date of recovery. Regal rejected the court’s suggestion that the deposition be taken in petitioner’s home. The court then ordered that the date of the deposition would be set pending the production of the medical affidavit. No date was set for compliance with the order to produce the affidavit.

On April 24, the court conducted a hearing on Regal’s April 20 motion for sanctions. The court awarded Regal attorney fees and costs as a sanction for petitioner’s noncompliance with discovery orders.

As of June 3, petitioner had not filed the affidavit, nor had she paid the previously ordered attorney fees. Regal filed another motion seeking additional remedies for noncompliance. Petitioner requested, and was granted, 14 days to respond; however, no response was filed. At the July hearing on the motion, petitioner handed Regal some documents. Regal stated that while he recognized some of the documents as those having been generated in his office in connection with the dissolution action, he was not familiar with others and could not tell whether all of the documents requested were included.

In opposition to the motion, petitioner argued that she had produced most of the records requested. Additionally, petitioner argued that the April 24 sanction had not been paid because she intended to appeal it. She further argued that she had not been ordered to produce an affidavit and that she had told the court that the deposition could be taken at her home. Petitioner’s attorney then offered to produce petitioner for a deposition.

The court stated that it would take the motion under advisement and remarked that it was disappointed that petitioner had not complied with any of the orders. On August 7, in response to Regal’s June 3 motion, the trial court ordered petitioner’s pleadings be stricken and entered a judgment of default. (107 Ill. 2d R. 219(c).) Petitioner’s October 7 motion to reconsider sanctions was denied, and this appeal followed. We affirm.

Discovery rules establish guidelines for a fair and orderly procedure whereby discovery and full disclosure may be accomplished. The rules permit the imposition of sanctions upon a party deemed by the trial court to have abused or disregarded discovery rules and procedures. (King v. American Food Equipment Co. (1987), 160 Ill. App. 3d 898, 910, 513 N.E.2d 958.) The appropriate sanction for a party’s noncompliance with discovery rules is a matter within the broad discretion of the trial court, and absent an abuse of that discretion, its decision will not be disturbed on appeal. (King, 160 Ill. App. 3d at 910; In re Estate of Soderholm (1984), 127 Ill. App. 3d 871, 469 N.E.2d 410.) Supreme Court Rule 219(c) authorizes the trial court to enter such orders as are just, including, among others, “that, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that his action be dismissed with or without prejudice; or that any portion of his pleadings relating to that issue be stricken.” 107 Ill. 2d R. 219(c).

Petitioner’s first contention on appeal is that the trial court abused its discretion in imposing the sanctions. She urges four points in support thereof. Petitioner’s arguments lack merit.

She first argues that the sanctions were improperly punitive. Relying on Hardware Wholesalers, Inc. v. Clemenic (1984), 124 Ill. App. 3d 304, 464 N.E.2d 700, she asserts that courts may not invoke sanctions which are purely punitive, but must do so only to achieve the objects of discovery. As evidence of the punitive nature of the sanctions, petitioner points out that at the July 21 hearing on the motion for sanctions she had produced all of the requested documents and had offered to be available for the deposition at any time in the future.

While it is clear that the purpose of sanctions is to accomplish the goal of discovery, at the same time, courts have an interest in promoting the unimpeded flow of litigation. This naturally requires that careful attention be paid to the prompt and orderly handling of discovery. (Fine Arts Distributors v. Hilton Hotel Corp. (1980), 89 Ill. App. 3d 881, 884, 412 N.E.2d 608.) “Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitatingly impose sanctions proportionate to the circumstances.” Buehler v. Whalen (1977), 70 Ill. 2d 51, 67, 374 N.E.2d 460.

Illinois courts are becoming less tolerant of violations of discovery rules, even at the expense of a case being decided on the basis of the sanction imposed, rather than on the merits of the litigation. In Lavaja v. Carter (1987), 153 Ill. App. 3d 317, 505 N.E.2d 694, the court ordered defendant to produce documents on two separate occasions. Defendant agreed to comply; however, he produced no documents. Upon plaintiff’s motion, the court struck the defendant’s pleadings and entered a default judgment. See also Amoco Oil Co. v. Segall (1983), 118 Ill. App. 3d 1002, 455 N.E.2d 876 (failure to comply with orders to appear for discovery deposition resulted in striking of defendant’s counterclaim and judgment on issue of liability); Campen v. Executive House Hotel (1982), 105 Ill. App. 3d 576, 434 N.E.2d 511 (failure to disclose name of witness in interrogatories resulted in exclusion of four defense witnesses and jury instructed on unfavorable inference to be drawn from withheld evidence).

We believe that petitioner’s production of the documents and her offer to appear for her deposition came much too late. By the time of the July 21 hearing, in addition to the original date which had been set by Regal, and the second date which had been agreed upon by the parties, petitioner had been twice ordered to appear for her deposition. Further, any attempt to reschedule the deposition for yet a fifth time was thwarted by petitioner’s failure to produce the affidavit from her physician. We note that a copy of a letter from Dr. Robbins, petitioner’s treating physician, was finally produced. The letter, dated October 1, 1987, states that petitioner was confined to bed in April. With the exception of the excuse of illness, petitioner offered no other for her failure to appear for her scheduled depositions.

Petitioner’s second argument is that her conduct was neither deliberate nor contumacious so as to warrant the sanction. She maintains that throughout the proceedings there remained a good-faith dispute concerning the scope of discovery and that she objected to the production of certain documents.

The record reveals that there was, in fact, a dispute over the scope of discovery regarding the production of documents. In March 1986, the parties agreed to formulate certain stipulations which would obviate the need for production. Unable to agree on the stipulations, petitioner stated that she would seek a ruling from the court as to the scope of discovery. (107 Ill. 2d R. 201(c).) We find no evidence in the record that she ever sought such an order.

At the April 21 hearing on Regal’s motion, after clarification of what documents were being requested, petitioner stated that she would comply. Yet, no documents were produced until July. Even if Regal’s request had been improper or objectionable, this would not excuse petitioner’s lack of cooperation. (Fine Arts Distributors v. Hilton Hotel Corp. (1980), 89 Ill. App. 3d 881, 884, 412 N.E.2d 608; Payne v. Coates-Miller, Inc. (1979), 68 Ill. App. 3d 601, 386 N.E.2d 398.) The correct remedy for improper discovery procedure, as petitioner was apparently aware, is to seek a protective order. 107 Ill. 2d R. 201(c).

Petitioner also argues that as a result of Regal’s representation of her, he already had in his possession most of the requested documents. Without deciding the propriety of Regal's request, we believe that many of the documents requested would not have been in his possession at the time of his request. Several of the documents requested were for dates beginning in 1983 through the date of production. Regal would not have had any documents past the time of his representation of petitioner.

Petitioner’s reliance on Jaffe v. Fogelson (1985), 137 Ill. App. 3d 961, 485 N.E.2d 531, is misplaced. In Jaffe, the defendant had been ordered, on three separate occasions, to appear at his deposition. The defendant either failed to appear or, if he did so, he refused to answer any questions on grounds of self-incrimination. Summary judgment was entered against him.

On appeal, the reviewing court stated that while the trial court had not indicated that summary judgment was imposed as a discovery sanction, had it done so, the sanction would have been too harsh. The court advocated a progression in the severity of discovery sanctions, and it noted that the record gave no indication that a less severe sanction had first been attempted or that it would have been fruitless. (137 Ill. App. 3d 961.) The court reasoned that by imposing progressively harsher sanctions, it could retain flexibility to force compliance with discovery.

Unlike in Jaffe, entry of the default judgment here was not the first sanction imposed. Here, the court had previously, and to no avail, assessed attorney fees and costs against petitioner. The court’s imposition of the second, more severe sanctions of entering a default judgment and striking petitioner’s pleadings is consistent with the reasoning in Jaffe.

Petitioner’s third argument is that the court should have imposed a less severe sanction, if any at all. She maintains that the first sanction, which awarded Regal attorney fees, served its purpose because, as of June 3, 1987, she had produced most of the requested documents and, as of July 21, she had fully complied with the request.

Petitioner relies on Hardware Wholesalers (124 Ill. App. 3d 304), to argue that the sanctions here were too harsh. In Hardware Wholesalers, the defendant had failed to appear for his deposition on numerous occasions and had been dilatory in complying with discovery. Upon the plaintiff’s motion for sanctions, the trial court struck and dismissed defendant’s pleadings and entered judgment for the plaintiff. In reversing, the appellate court stated that the record did not show that the defendant’s failure to appear for the scheduled depositions was intentional, and that defendant’s conduct did not approach the deliberate and contumacious disregard of the courts’ authority required to uphold such a drastic sanction. The court suggested that a less severe sanction might have been appropriate, with the drastic, more severe measure of the default judgment if the defendant subsequently acted in a similar manner.

Compliance with the order required more than the production of most of the documents. It is apparent that petitioner presented the documents at the last possible moment and only in hopes of escaping the default sanction. The record here belies any argument that petitioner’s conduct was anything but deliberate and in direct defiance of the court’s orders. Moreover, in Hardware Wholesalers, as in Jaffe, entry of the default and summary judgment were the first sanctions imposed. Here, the trial court’s imposition of the second sanction echoes the logic of Hardware Wholesalers and Jaffe.

Petitioner’s fourth argument is that the trial court should have set aside its sanctions and had a trial on the merits. Relying on Hardware Wholesalers and Humboldt-Armitage Corp. v. Illinois Fair Plan Association (1980), 86 Ill. App. 3d 888, 408 N.E.2d 307, she states that a default should be set aside when a trial on the merits may be held without visiting hardship or prejudice upon the parties. She argues that since there was no harm to Regal, a trial on the merits was appropriate.

Where the trial court imposes a sanction for noncompliance pursuant to Rule 219(c), the offending party has the burden of establishing, by affidavit or otherwise, that his failure to comply with the court’s discovery order was justified by extenuating circumstances. (Humboldt-Armitage, 86 Ill. App. 3d at 890; Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 402 N.E.2d 352.) In order to justify setting aside the default order, the offender must show a willingness to comply with discovery orders in the future. Hall v. Jacobs, Camodeca & Timpone (1985), 134 Ill. App. 3d 516, 521, 481 N.E.2d 5.

Petitioner correctly argues that prejudice to the opposing party is a factor to be considered in determining the appropriateness of a sanction. (Ashford v. Ziemann (1984), 99 Ill. 2d 353, 369, 459 N.E.2d 940, citing Kirkwood v. Checker Taxi Co. (1973), 12 Ill. App. 3d 129, 132, 298 N.E.2d 233.) However, prejudice is not the sole consideration. As is apparent from Jaffe and Hardware Wholesalers, consideration may also be given to whether this was only one or many failures to comply with orders. Additionally, consideration may be given to the nature of the excuse tendered for the noncompliance. Compare Lohja v. Checker Taxi Co. (1980), 92 Ill. App. 3d 491, 416 N.E.2d 32; Presbyterian-St. Luke’s-Hospital v. Feil (1979), 75 Ill. App. 3d 438, 394 N.E.2d 537.

Despite petitioner’s flagrant disregard of the court’s orders and the unwarranted delay, frustration and expense she caused Regal, she asks this court to condone her conduct. We cannot. In our review, we are mindful that petitioner’s conduct was not a one-time occurrence, but rather, a repeated indifference to the court’s orders. Further, we are not persuaded, based on this record, that petitioner had any legitimate reasons for not complying with the discovery or-' ders.

In light of petitioner’s continued noncompliance after the imposition of the first sanction, we are not convinced, nor should the trial court have been, that her conduct would have been different in the future. The record here wholly supports the trial court’s findings and reveals a pronounced pattern of deliberate and blatant disregard of discovery rules. (Valdivia v. Chicago & North Western Transportation Co. (1980), 87 Ill. App. 3d 1123, 409 N.E.2d 457.) The trial court’s order striking petitioner’s pleadings and entering a default against her will stand.

Before leaving this contention, we address, briefly, Regal’s response that no default judgment was entered. He maintains that only petitioner’s pleadings were struck and that the case was “heard as in cases of default.” We have examined cases wherein, pursuant to Rule 219(c), a default judgment was entered as a discovery sanction. The effect, in each case, was the admission of liability, and a trial on the issue of damages only. (See Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119; Strickler v. McCarthy (1965), 64 Ill. App. 2d 1, 212 N.E.2d 723, aff’d in part & rev’d in part (1967), 37 Ill. 2d 48, 224 N.E.2d 827; Smith v. Dunaway (1966), 77 Ill. App. 2d 1, 221 N.E.2d 665.) Even though the court here did not expressly state that it was entering a default judgment, that was, nonetheless, the effect of its order, which under the rule and case law was proper.

Petitioner’s second contention on appeal is that the trial court abused its discretion in awarding Regal attorney fees because he conducted himself in an unethical manner. She urges two points in support of this contention.

She first argues that Regal breached his fiduciary duty to her by creating a conflict of interest. She asks this court to deduct the fees awarded for the period of time that the conflict existed. Specifically, in April 1982, Regal filed his appearance as the attorney for Duane Quaini, a partner in the law firm of petitioner’s husband. For a period of time, Regal was simultaneously representing Quaini and petitioner in their respective dissolution cases. As petitioner’s attorney, Regal was charged with obtaining full disclosure of all partnership assets and maximizing their valuation. However, Quaini’s interests were best served by limiting disclosure of partnership information and minimizing all valuations. Petitioner maintains that the conflict of interest is highlighted by the protective order which was entered to protect Quaini’s interest and the interest of the law firm. She concludes that if Regal used financial information obtained from Quaini in his representation of her, he would have breached his duty to Quaini, and if he failed to do so, then he failed to represent her fairly.

Regal counters that the claimed conflict of interest charge is baseless. He maintains that petitioner was fully aware of his representation of Quaini and that she consented thereto. Further, he testified that information gained in one case was not shared in the other. In the alternative, he asserts that since breach of fiduciary duty was an affirmative defense and was not raised below, it is waived.

Ordinarily, a party will not be permitted to argue on appeal a defense not interposed by his answer. The fact that certain evidence lends support to the defense does not mitigate the force of this rule. In any action before the trial court, “[t]he proof presented is determined largely by the pleadings, the issues, and the theories there made.” (Broberg v. Mann (1965), 66 Ill. App. 2d 134, 138, 213 N.E.2d 89.) However, the rule regarding waiver is not a limitation on the reviewing court’s jurisdiction, but is, instead, an admonition to the parties. (Siebach v. Pienta (1978), 60 Ill. App. 3d 645, 377 N.E.2d 393.) Moreover, where a defendant fails to plead a defense and subsequently raises it at trial, waiver of the defense is waived by the plaintiff's failure to object. See La Salle National Bank v. City of Chicago (1977), 54 Ill. App. 3d 944, 953, 369 N.E.2d 1363 (failure to plead res judicata waived when plaintiff failed to object when raised by defendant at trial).

At the hearing on damages, petitioner posed several questions to both Regal and his expert on the issue of conflict of interest. Regal voiced no objection. Although petitioner did not plead conflict of interest in her answer, that failure was waived by Regal’s failure to object when the issue was raised at the hearing.

Petitioner maintains that under the rule in People v. Coslet (1977), 67 Ill. 2d 127, 364 N.E.2d 67, where there is a per se conflict of interest, allegations and proof of prejudice are unnecessary. The per se conflict of interest rule was adopted in People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441, and has been applied to those cases wherein the defense counsel has had a prior or contemporaneous association with either the prosecution or the victim. (People v. Spreitzer (1988), 123 Ill. 2d 1, 14, 525 N.E.2d 30, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) The Spreitzer court cites to the following case examples as per se conflict of interest: People v. Washington (1984), 101 Ill. 2d 104, 461 N.E.2d 393, cert. denied (1984), 469 U.S. 1022, 83 L. Ed. 2d 367, 105 S. Ct. 442 (defense attorney simultaneously served as a part-time attorney for the municipality where the defendant was being prosecuted); People v. Fife (1979), 76 Ill. 2d 418, 392 N.E.2d 1345 (defense attorney simultaneously served as a special assistant Attorney General handling unemployment compensation cases for the State on a part-time basis); and People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441 (defense attorney and his firm simultaneously represented the defendant, the corporation whose store had been burglarized and the store’s owner). Contrary to petitioner’s recitation of the per se rule, allegations and proof of prejudice are unnecessary only in cases where the defendant has not given knowledgeable assent. Stoval, 40 Ill. 2d at 113.

In order for us to find that there was a per se conflict of interest, we must find that petitioner did not consent to the representation. Petitioner argues that, but for the entry of the default judgment, she could have testified and she would have denied that she had given consent. Petitioner’s claim of precluded testimony is not born out by the record.

We have reviewed that portion of the record wherein the parties presented arguments to the court concerning petitioner’s right to present evidence. Petitioner offered the testimony of George Feiwell. In response, Regal argued that under some case law, where a default has been entered, the defendant had the right to cross-examine the plaintiff’s witnesses, but he could not bring in witnesses of his own. Regal also advised the court that there was case law which made it discretionary with the court whether to permit the plaintiff to call witnesses. Petitioner responded that she understood that she would not be allowed to present evidence; that she would only be permitted to cross-examine Regal’s witnesses and to offer impeachment testimony. After hearing the arguments, the court concluded that petitioner had a right to be heard on the issue of damages.

It appears from the record that petitioner was not precluded from presenting testimony on the issue of damages. Her attorney never offered her (petitioner’s) testimony. Petitioner presented one witness, George Feiwell. She had the right to present whatever evidence she had in contravention to Regal’s claims on the issue of damages. Petitioner will not be heard to complain about precluded evidence which she never offered.

Petitioner places great reliance on Skokie Gold Standard Liquors, Inc. v. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 452 N.E.2d 804, in support of her per se conflict argument. Skokie is not a per se conflict case. It involved the propriety of the disqualification of an attorney for alleged violations of Canons 4 (the preservation of client confidences and secrets) and 9 (the avoidance of the appearance of impropriety) of the Illinois Code of Professional Responsibility (107 Ill. 2d Canon 4, Canon 9). (116 Ill. App. 3d at 1046.) The issue before the Skokie court was whether there was a substantial relationship between the subject matter of the former representation and that of the subsequent adverse representation which would require disqualification.

Petitioner quotes language from Skokie which states that “any doubt as to the existence of a conflict [must be] resolved in favor of disqualification.” (116 Ill. App. 3d at 1057-58.) She relies on this language to support her conflict per se argument. Read in its proper context, it is apparent that the court there was not dealing with the per se conflict rule. Rather, the court was expounding on the rules established by the Federal courts with regard to the disqualification of an attorney and the standard of proof required to rebut the presumption that confidences of the former client had been shared by the attorneys. The court, citing La Salle National Bank v. County of Lake (7th Cir. 1983), 703 F.2d 252, stated that in the interest of avoiding the appearance of impropriety, the attorney against whom disqualification is sought has a strict burden of proof, and therefore, any doubts should be resolved in favor of his disqualification. Skokie, 116 Ill. App. 3d at 1057-58.

Generally, unless the conflict is so clear as to be undisputed, expert testimony is necessary to prove attorney malpractice. (ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1980), 90 Ill. App. 3d 817, 831, 413 N.E.2d 1299.) Here, petitioner questioned Regal and Regal’s expert on the issue of the conflict. Both testified that no conflict was presented as a result of the simultaneous representation. Petitioner presented no expert to rebut that testimony. She failed to present any evidence which would prove that she was in any way prejudiced or that she was otherwise represented unfairly. We do not view the conflict here as being so clear as to render petitioner’s presentation of evidence unnecessary.

Petitioner next argues that Regal’s ex parte communication with Judge Jorzak was unethical. Regal testified that on February 24, 1986, he received a postcard from the clerk of the circuit court informing him that the Harris dissolution case had been dismissed for want of prosecution. After receiving the card, he telephoned the attorney for petitioner’s husband and the firm of Feiwell, Galper, Laskey & Berger, who he “knew to be doing work on [petitioner’s] case.” On February 27, Regal went to Judge Jorzak’s chambers, informed the judge that there had been no prior notice of dismissal in the law bulletin, and that the dismissal was erroneous. Judge Jorzak recognized the error and signed an order to reinstate the case and return it to the trial call.

According to Regal, at the time of the dismissal, he was still involved in petitioner’s dissolution action, and he had not been told to discontinue answering court calls. Petitioner states in her brief that there is some dispute as to whether Regal was discharged from the case or whether her new counsel became co-counsel with Regal. A letter from Feiwell to Regal, dated January 1985, states that Feiwell had filed an additional appearance in the case.

Regal states that his meeting with Judge Jorzak was for the benefit of petitioner. He points out that at the time of the dismissal, petitioner’s husband was under a court order to pay her maintenance. Had the action been dismissed, maintenance would have ceased.

Rule 17 of the circuit court of Cook County provides that a judge should not permit a lawyer to engage in ex parte communications, unless allowed by law, in connection with any matter pending before him. The judge may, with the express consent of all parties of record, communicate with fewer than all participants to promote settlement, for the purpose of scheduling or for any other similar purposes. (Cook County Cir. Ct. R. 17.1 et seq.) Supreme Court Rule 61(c) provides that a judge should not permit such communications designed to influence his judicial action.

We find unpersuasive petitioner’s argument that Regal’s intervention to vacate the dismissal was for the purpose of protecting his fee. Further, while we do not encourage ex parte communications, we do not believe that Regal's meeting with the judge was for the purpose of influencing his judicial action. Also, we agree with Regal that the logical party to have objected to the vacatur would have been petitioner’s husband, with whose attorney Regal stated that he had spoken. Finally, petitioner does not claim harm or prejudice to her as a result of the ex parte communication, and we find none.

The final issue before this court concerns Regal’s request that we assess sanctions against petitioner for bringing this appeal. In his brief, he argues that by bringing this appeal, petitioner has violated section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611) and Supreme Court Rule 137 (134 Ill. 2d R. 137). At oral argument, Regal stated that he was seeking sanctions pursuant to Supreme Court Rule 375 (134 Ill. 2d R. 375). Included in his list of violations are that (1) petitioner cited to no legal authority in support of her contention that there was a conflict of interest; (2) petitioner’s statements in her brief that a default judgment was entered were false; (3) it is undisputed that petitioner was not in compliance with the discovery orders; and (4) petitioner had no proper basis for appealing on grounds which were never properly raised in the trial court. For the reasons stated below, we decline to grant Regal’s request.

Without specifically addressing the merits of each of Regal’s arguments, we note that section 2 — 611 is penal in nature and, as such, it must be strictly construed. (Lee v. Egan (1987), 160 Ill. App. 3d 1078, 1081, 513 N.E.2d 1023.) We do not believe that the conduct referred to by Regal is that which was contemplated by section 2 — 611 to punish. While we are ultimately unpersuaded by petitioner’s arguments, we do not find them to have been totally devoid of merit or so contrary to existing law so as to warrant the imposition of sanctions. Ill. Rev. Stat. 1987, ch. 110, par. 2—611.

Regal raises one other argument in support of his request for sanctions. He argues that petitioner has no basis to appeal the April 24 order for sanctions because she admitted that they were warranted. Review of the record reveals that petitioner did include the issue of the April 24 order in her notice of appeal. However, that issue is not argued in petitioner’s brief, and, thus, it is not before this court on appeal. See generally Svec v. Allstate Insurance Co. (1977), 53 Ill. App. 3d 1033, 369 N.E.2d 205.

Even were we to find that petitioner’s conduct fell within the purview of section 2 — 611, we would decline the imposition of sanctions. We note that there is a variance of opinion within the districts in Illinois as to whether section 2 — 611 confers authority on the appellate court to impose sanctions. The second, fourth and fifth districts have held that section 2 — 611 does not apply to appeals. (See Holcomb State Bank v. Federal Deposit Insurance Corp. (2d Dist. 1989), 180 Ill. App. 3d 840, 536 N.E.2d 453, but see Manchester Insurance & Indemnity Co. v. Strom (2d Dist. 1970), 122 Ill. App. 2d 183, 258 N.E.2d 150; Darnall v. City of Monticello (4th Dist. 1988), 168 Ill. App. 3d 552, 522 N.E.2d 837; Dunaway v. Ashland Oil Co. (5th Dist. 1989), 189 Ill. App. 3d 106, 544 N.E.2d 1313.) The third district has held that section 2 — 611 does apply to appeals. See Fellows v. Miler (3d Dist. 1986), 141 Ill. App. 3d 639, 490 N.E.2d 992; McCormick v. Louis Joliet Bank & Trust Co. (3d Dist. 1983), 114 Ill. App. 3d 205, 448 N.E.2d 905.

We, in the first district, have, in the past, held that section 2— 611 applies to appeals. (See Davis v. Chicago Housing Authority (1988), 176 Ill. App. 3d 976, 531 N.E.2d 1018; Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 525 N.E.2d 995; Aroonsakul v. Flanagan (1987), 155 Ill. App. 3d 223, 507 N.E.2d 1; Federal Insurance Co. v. Maritime Shipping Agencies, Inc. (1978), 64 Ill. App. 3d 19, 380 N.E.2d 873; Schroeder v. Busenhart (1971), 133 Ill. App. 2d 180, 272 N.E.2d 750, cert. denied (1972), 405 U.S. 1017, 31 L. Ed. 2d 479, 92 S. Ct. 1293.) However, in light of the recent promulgation of Supreme Court Rules 137 and 375, and the cases cited above, we now hold that section 2 — 611 confers no such authority on this court.

Rule 137, which became effective August 1, 1989, largely parallels section 2 — 611. It provides for the imposition of sanctions for pleadings which are not well grounded in fact or warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that are interposed for any improper purpose. (134 Ill. 2d R. 137.) The committee comments following the rule state that the rule, which preempts section 2 — 611, authorizes the trial courts to impose certain sanctions for violations. Unlike section 2 — 611, Rule 137 allows, but does not require, the imposition of sanctions. Also, unlike section 2 — 611, Rule 137 requires a trial judge who imposes sanctions to set forth the reasons and basis of that sanction in a separate written order. 134 Ill. 2d R. 137 Committee Comments, at 131.

Power is vested in the supreme court, not the legislature, to issue rules regulating appeals. (People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 65-66, 237 N.E.2d 495; Wiley v. Howard (1989), 180 Ill. App. 3d 721, 725, 536 N.E.2d 186.) Supreme Court Rule 1 provides, in pertinent part, that “[t]he rules on appeals shall govern all appeals.” (107 Ill. 2d R. 1.) Where a rule on a matter within the court’s authority and a statute on the same subject conflict, the rule will prevail. People v. Cox (1980), 82 Ill. 2d 268, 274, 412 N.E.2d 541; People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602.

Section 2 — 611 of the Code of Civil Procedure does not address the applicability of sanctions by the appellate court. However, any attempt by the legislature to have section 2 — 611 apply to rules in the appellate court would have exceeded its authority and rendered the statute invalid. (See Jackson, 69 Ill. 2d at 259.) Further, it is apparent that a determination that section 2 — 611 confers authority upon the appellate court would create a conflict with Supreme Court Rule 137.

Our belief that section 2 — 611 does not confer authority upon this court is further enhanced by the supreme court’s adoption of Rule 375, which specifically provides for sanctions for frivolous appeals. (134 Ill. 2d R. 375.) Prior to the adoption of Rule 375, no supreme court rule provided for the imposition of fees and costs on a party as a result of an unwarranted appeal. Supreme court rules as to appeals supersede all statutory provisions, and consequently, Supreme Court Rule 375 provides the exclusive means by which the appellate court may impose sanctions for frivolous appeals.

Having determined that Rule 375 vests, in this court, the authority to impose sanctions, we nonetheless conclude that petitioner’s conduct here does not so warrant. As a final consideration of Regal’s request for sanctions, we note that Rule 375, which was adopted subsequent to the filing of this appeal, is, like section 2— 611, penal in nature. As such, it does more than effect a mere change in existing procedure; it imposes an obligation which did not previously exist. Thus, it may only be imposed prospectively. Dunaway v. Ashland Oil, Inc. (1989), 189 Ill. App. 3d 106, 117; Board of Education of School District No. 170 v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 461 N.E.2d 567.

For the foregoing reasons, we affirm the order of the circuit court.

Affirmed.

CERDA, P.J., and WHITE, J., concur.

      We have found no cases which directly address the effect that the striking of an answer has on affirmative defenses pleaded therein. Under the Federal Rules of Civil Procedure, ordinarily, a portion of an answer setting up an affirmative defense requiring proof, and which if sustained, would be a defense, could not be reached by a motion to strike. See 35A C.J.S. Federal Civil Procedure §425 (1960).


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    MICHAEL REESE HOSPITAL AND MEDICAL CENTER, Plaintiff-Appellant, v. CHICAGO HMO, LTD., Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—2580
    Opinion filed April 4, 1990.

      Jeffrey Lennard, Jay Conison, Barney I. Cohen, and Stephen J. Weiser, all of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellant.
    Howard J. Swibel, Arthur L. Klein, Patrick F. Geary, and Richard C. Gering, all of Arnstein & Lehr, of Chicago, for appellee.
    Rudolf G. Schade, of Cassiday, Schade & Gloor, of Chicago, and Mark D. Deaton, of Naperville, for amici curiae.

   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Michael Reese Hospital and Medical Center (Reese), appeals from an order of the circuit court granting defendant’s motion to dismiss Reese’s complaint with prejudice, pursuant to section 2— 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615). Reese argues that the trial court erred in finding that the complaint failed to state a claim for restitution.

Reese filed suit in the circuit court against defendant, Chicago HMO, Ltd. (CHMO), seeking a declaration that CHMO was obligated to pay Reese for medical services rendered to CHMO members. In its complaint, Reese alleged that it was a not-for-profit corporation licensed to provide hospital services under the laws of Illinois; that under Illinois law, it was obligated to provide emergency medical services to any person who came to Reese in need of such services (Ill. Rev. Stat. 1987, ch. 1111/2, pars. 86, 6151); that despite its obligation to provide emergency medical services, it was not required to provide its services for free; that it had the right to reimbursement for its services from the persons to whom the services were provided as well as from any person with a duty to provide or arrange for the provision of emergency services to such persons; that when it provided emergency services to a patient it did so with the intent to charge for the services rendered; and that, unless there was a contractual arrangement to the contrary, such patients were billed at Reese’s usual and customary rate for the services rendered.

Reese alleged that the Illinois Department of Public Aid (IDPA) had a statutory responsibility to compensate providers of medical assistance to public aid recipients, and that in some instances IDPA contracted through the Illinois Competitive Access and Reimbursement Equity (ICARE) program to reimburse hospitals directly. In other instances IDPA entered into arrangements with health maintenance organizations (HMOs), under which the HMOs assumed responsibility for providing or paying for medical services rendered to those public aid recipients who became members of the HMOs.

Reese further alleged that both it and CHMO had entered into contracts with the IDEA pursuant to IDEA’S ICARE program. Under Reese’s contract with IDEA, Reese agreed to provide emergency care to a specified number of public aid recipients and IDEA agreed to make direct payments to Reese in an amount lower than the usual and customary rate charged by Reese. The amount of these payments, called the “ICARE rate,” was determined on the basis of projections by Reese of the number of public aid patients it would treat. Reese’s contract with IDEA stated that the ICARE rate was to be kept confidential.

Under CHMO’s contract with IDEA, IDEA provided payments to CHMO, in exchange for which CHMO agreed to provide or arrange to provide emergency medical care to public aid recipients who became CHMO members. The contract required CHMO to make payments to all hospitals that provided emergency medical services to CHMO members, whether or not CHMO had entered into contracts with those hospitals for the provision of such services.

In 1983, Reese began providing emergency medical services to public aid recipients who were members of CHMO. Reese alleged that initially it was unaware that the patients it treated were CHMO members and, therefore, it billed IDEA for the services rendered to those patients. After Reese was informed by IDEA that CHMO was responsible for reimbursing Reese, Reese submitted the bills for those patients to CHMO. However, CHMO refused to reimburse Reese on the ground that Reese had failed to notify CHMO of the treatment within 48 hours.

Reese alleged that if CHMO were permitted to avoid payment to Reese for services Reese rendered to CHMO patients because of lack of notification, CHMO would be able to retain the amounts paid to it by IDEA for the cost of such services while escaping its contractual obligation to reimburse Reese for such services. Alleging that this would result in unjust enrichment of CHMO, Reese sought a declaration that CHMO had no right to deny payment based on Reese’s failure to notify CHMO within a period unilaterally fixed by CHMO.

Reese also alleged that in 1984 it began notifying CHMO of emergency treatment provided by Reese to CHMO members within 48 hours of such treatment; that Reese billed CHMO for the treatment at Reese’s usual and customary rate; and that Reese expected payment in full for its services. Despite Reese’s demands for payment in full, CHMO regularly tendered payment for services rendered to its members, not at Reese’s usual and customary rate, but at the lower ICARE rate established in the contract between Reese and IDPA.

Reese alleged that it was not required by its contracts with IDPA to accept payment from HMOs at the ICARE rate. In support of this allegation, Reese attached to its complaint a letter in which IDPA stated that “at no time has [IDPA] contemplated the application of the ICARE rates for the reimbursement of hospital services to HMO recipients.”

Reese further alleged that under the contract between IDPA and CHMO, the payments made by IDPA to CHMO were based on CHMO paying an amount in excess of the ICARE rate to hospitals that provided care to CHMO members. Reese contended that if CHMO was permitted to pay Reese no more than the ICARE rate, CHMO would be unjustly benefitted at the expense of Reese.

CHMO filed a motion to dismiss Reese’s complaint pursuant to section 2 — 615. In its motion, CHMO argued that because Reese had an independent duty to provide emergency medical treatment to public aid recipients, Reese had no right to restitution from CHMO. CHMO also argued that Reese had no reasonable expectation of payment from CHMO, in light of CHMO’s continued refusal to pay for the services rendered at the rate demanded by Reese.

Following a hearing the trial court granted CHMO’s motion and entered an order dismissing Reese’s complaint with prejudice. The trial court found that under the principles of Griffith Wrecking Co. v. Greminger (1978), 65 Ill. App. 3d 962, 382 N.E.2d 1387, Reese was barred from seeking restitution because of its statutory obligation to provide medical services.

In this appeal, Reese argues that the trial court erred in dismissing its complaint pursuant to section 2 — 615. We agree.

Under section 2 — 615, a party may move for dismissal of an action where the pleadings fail to state a cause of action. However, a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 312 N.E.2d 259; Krautstrunk v. Chicago Housing Authority (1981), 95 Ill. App. 3d 529, 420 N.E.2d 429.) In determining whether a motion to dismiss was properly allowed, pertinent facts alleged in the complaint and contained in appended exhibits are accepted as true. (Krautstrunk, 95 Ill. App. 3d 529, 420 N.E.2d 429; Spencer v. Community Hospital (1980), 87 Ill. App. 3d 214, 408 N.E.2d 981.) If, on the facts alleged and the inferenees reasonably drawn therefrom, there is any possibility of recovery, the order of dismissal must be vacated. First Security Bank v. Bachleda (1987), 165 Ill. App. 3d 725, 520 N.E.2d 660.

In the present case, Reese’s complaint sought restitution for the value of services rendered to CHMO patients based upon a theory of unjust enrichment. To state a cause of action based on a theory of unjust enrichment, a complaint need only allege that there was an unjust retention of a benefit, by one party, to the detriment of another party against the fundamental principles of justice, equity, and good conscience. HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672; Kenneke v. First National Bank (1978), 65 Ill. App. 3d 10, 382 N.E.2d 309.

Reese alleged in its complaint that under the contract between IDPA and CHMO, IDEA provided payments to CHMO in exchange for which CHMO was to (1) provide medical services to CHMO members and (2) pay for all emergency services rendered by hospitals to its members, whether or not it had entered into a contract with those hospitals. Reese also alleged that a number of CHMO members had received treatment at Reese; that CHMO refused to reimburse Reese for the care provided to such patients at Reese’s usual and customary rate and instead paid only the ICARE rate; that IDEA did not intend the ICARE amount to be applied in reimbursing hospitals; that the payments CHMO received from IDEA on behalf of its members exceeded the ICARE amount; and that if CHMO were allowed to reimburse Reese at the ICARE rate, and in some instances escape reimbursement entirely, it would be unjustly enriched.

We find that these allegations sufficiently allege that CHMO has received a benefit, and that the retention of the benefit would be unjust and to the detriment of Reese. (HPI Health Care Services, Inc., 131 Ill. 2d at 160.) We conclude, therefore, that the trial court erred in dismissing Reese’s complaint for failure to state a cause of action.

CHMO argues, and the trial court found, that Reese’s statutory duty to provide emergency care precludes it from recovering for its services. CHMO bases its argument on section 106 of the Restatement of Restitution (Restatement of Restitution §106 (1936)) and on the decision in Griffith Wrecking Co. v. Greminger.

Section 106 states:

“A person who, incidentally to the performance of his own duty or to the protection or the improvement of his own things, has conferred a benefit upon another, is not thereby entitled to contribution.” (Restatement of Restitution §106 (1936).)

In Griffith, the appellate court relied on this section in finding that the City of Springfield was not entitled to reimbursement under theories of unjust enrichment and implied contract.

There, plaintiff filed suit against defendant to recover for the. demolition of a fire-damaged building on defendant’s property. Defendant filed a third-party complaint against the City of Springfield alleging that the work was done at the city’s request, at a time when the city was conducting a search for the bodies of two unaccounted-for inhabitants of the building. In response, the city alleged that defendant was under a statutory duty and municipal ordinance obligation to demolish the building for reasons of public safety; that the city was entitled to recover the cost of demolition from defendant under an implied contract theory; and that defendant would be unjustly enriched if he were not required to reimburse the city for discharging his duty. The trial court found that defendant was not liable to the city and the appellate court affirmed.

In reaching its decision, the appellate court took note of testimony from plaintiff’s president that the Springfield fire department requested that plaintiff demolish the building so that a search for bodies could be conducted. The appellate court held that this evidence was sufficient to support a finding that the principal purpose of the work was the search for bodies. Relying on section 106, the court further held that such a finding would preclude the city from recovery for the incidental benefit defendant received by being relieved of his duty to demolish the building. Griffith Wrecking Co. v. Greminger (1978), 65 Ill. App. 3d at 963.

Reese argues that neither Griffith nor section 106 is applicable to the present case. We agree and we find that there is nothing in the Griffith decision or in the language of section 106 that would preclude Reese from recovering for its services.

Unlike Griffith, in the case before us, Reese alleges that its statutory duty and CHMO’s contractual duty were identical: both were obligated to provide emergency medical services to indigent patients.

Reese’s complaint alleges that Reese had a statutory duty to provide emergency services to indigent patients and that CHMO had a contractual duty to either provide such services to its members or to reimburse Reese and other hospitals that did so. Reese also alleges that payments CHMO received from IDEA, with which it was to reimburse hospitals that provided medical care to CHMO members, were in excess of the ICARE rate which CHMO paid to Reese, and that, therefore, CHMO would be unjustly enriched at Reese’s expense if it was allowed to retain the payments without reimbursing Reese for the full value of its services.

As stated above, these allegations are sufficient to state a cause of action for unjust enrichment (see HPI Health Care Services, Inc., 131 Ill. 2d at 160), and we find that they present a set of circumstances sufficiently distinguishable from those in Griffith. A further distinction from Griffith is that in the present case, Reese’s complaint alleges that CHMO has made payment to Reese for services rendered to CHMO patients, indicating that CHMO has recognized that some right of restitution exists. No such allegations were made in Griffith, and we, therefore, hold that the court’s decision in that case cannot be considered controlling.

In conclusion, we find that the trial court erred in dismissing Reese’s complaint for failure to state a cause of action, and we reverse the court’s decision and remand this cause for further proceedings.

The judgment of the circuit court of Cook County is reversed and remanded.

Reversed and remanded.

RIZZI and FREEMAN, JJ., concur.


text:
    CORKILL ELECTRIC COMPANY, Indiv. and on behalf of Illinois Petroleum Company, Inc., Plaintiffs and Counterdefendants-Appellants, v. THE CITY OF CHICAGO et al., Defendants (Burnham Park Planning Board, Defendant and Counterplaintiff-Appellee).
    First District (3rd Division)
    Nos. 1—88—3805, 1—89—0972 cons.
    Opinion filed April 4, 1990.

      Robert Fioretti, of Chicago, for appellants.
    James D. Brusslan, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

This case is a consolidated appeal by Corkill Electric Co. (Corkill) from judgments entered by the circuit court in favor of the Burnham Park Planning Board (Burnham Park). In appeal No. 1 — 88—3805, Corkill argues that the court erred when it dismissed Corkill’s estoppel defense, when it severed Burnham Park’s counterclaim, and when it granted Burnham Park’s motion for summary judgment. In appeal No. 1 — 89—0972, Corkill argues that the court erred when it granted Burnham Park’s petition for attorney fees.

On May 15, 1985, the Chicago city council issued an order directing that a permit be issued for the erection of a “sign/signboard” at 41 West Congress Parkway. The order provided that the sign “shall comply with all applicable provisions of Chapter 194A of the Chicago Zoning Ordinance and all other applicable provisions of the Municipal Code of the City of Chicago governing the construction and maintenance of outdoor signs, signboards and structures.” The permit was issued on November 1, 1985, and in early 1986, Corkill began construction of two illuminated advertising signs measuring 12 feet by 36 feet.

On November 28, 1986, the department of zoning denied Corkill’s application for zoning certification on the ground that the sign failed to conform with the applicable provisions of section 9.9(5) of the Municipal Code of Chicago (Chicago Municipal Code ch. 194A, par. 9.9(5) (1988)). Section 9.9(5) provides that no advertising sign shall be permitted within 500 feet of any major route, including those portions of the comprehensive superhighway system of the City of Chicago, approved by the city council. The department found that Corkill’s sign was located too close to property acquired for the comprehensive superhighway system, in violation of section 9.9(5).

Corkill appealed the department’s decision to the zoning board of appeals. Prior to the hearing on Corkill’s appeal, Burnham Park submitted a memorandum in support of the denial of zoning certification. In its memorandum, Burnham Park argued that the department’s decision should be affirmed and the signs removed.

On March 20, 1987, the board adopted a resolution denying Cor-Mil’s appeal and affirming the department’s decision. The board found that city records indicated that in 1940, an ordinance was passed designating Congress Parkway as part of the west route of the comprehensive superhighway system and that, therefore, Corkill’s sign was located on property that abutted the comprehensive superhighway system, in violation of section 9.9(5).

Subsequently, Corkill filed a complaint in administrative review in the circuit court of Cook County. Corkill’s .complaint named as defendants the City of Chicago, the zoning board of appeals, the department of zoning, and Burnham Park, among others.

Burnham Park filed a counterclaim against Corkill seeking an order requiring Corkill to remove the signs. Burnham Park’s counterclaim, which was filed pursuant to section 11—13—15 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 11 —13—15), also sought attorney fees pursuant to the provisions of that section.

At a hearing on October 3, 1988, the circuit court affirmed the findings of the board that Congress Parkway was a part of the comprehensive superhighway system and that the sign was maintained within 500 feet thereof in violation of section 9.9(5). However, after severing Burnham Park’s counterclaim, the court remanded Corkill’s administrative review action to the board for a determination of whether the city was estopped from denying Corkill’s application for zoning certification.

On October 17, 1988, Burnham Park filed a motion for summary judgment on its counterclaim. Attached to the counterclaim was the affidavit of Barbara Lynne, Burnham Park's executive director. In her affidavit, Lynne stated that approximately one-half of Burnham Park’s members were owners or tenants of real property located within 1,200 feet of the signs at 41 West Congress Parkway.

At the hearing on Burnham Park’s motion for summary judgment, held November 18, 1988, Corkill argued that Burnham Park, as well as the city, was estopped from maintaining an action to remove the signs. Questions also were raised at the hearing about Burnham Park’s standing to maintain an action under section 11 — 13—15.

Following the hearing, the court entered an order granting the motion in part. The court found that Corkill’s signs were maintained in violation of section 9.9(5) of the Municipal Code and that even if Corkill could assert a successful defense of estoppel against the city, the defense would not be applicable to Burnham Park because there was no privity between Burnham Park and the city.

The court also granted Burnham Park leave to file instanter an amended counterclaim and affidavit showing that Burnham Park itself was a tenant or owner of real property located within 1,200 feet of the sign. The amended affidavit stated that Burnham Park had been a tenant of property located at 343 South Dearborn, and within 1,200 feet of Corkill’s sign, since 1981. The amended affidavit further stated that between 1980 and 1987, Burnham Park’s tenancy was pursuant to an oral lease and that Burnham Park currently had a written lease which ran until December 1988.

Corkill was given one week to respond to the amended counterclaim and affidavit, and a hearing on the issue of whether Burnham Park was a tenant of real property within 1,200 feet of Corkill’s sign was scheduled for November 28,1988.

Corkill failed to respond to Burnham Park’s affidavit, and at the November 28 hearing, the court entered an order granting Burnham Park’s motion for summary judgment and requiring Corkill to remove the sign within 30 days.

On November 30, 1988, Burnham Park filed its petition for attorney fees pursuant to section 11 — 13—15. The petition was accompanied by the affidavit of Burnham Park’s counsel, James Brusslan of Mayer, Brown & Platt, stating that Burnham Park had incurred fees and expenses totaling $22,659.35. Also attached to the petition were photocopies of computer printouts showing the work performed, the hours expended, and the rates charged.

In its response to Burnham Park’s petition for fees, Corkill argued that Burnham Park was not entitled to fees because its actions were duplicative of those of the city. Corkill also argued that Burnham Park’s request for $22,659.35 was unreasonable “in light of the worked performed and the ends accomplished” and that Burnham Park had improperly included charges for “incidentals” such as word processing and docketing.

At the hearing on Burnham Park’s petition, the trial court found that Burnham Park was entitled to fees under section 11 — 13—15. The court also granted Burnham Park leave to file an affidavit establishing that the fees charged were reasonable and gave Corkill seven days to file a counteraffidavit challenging the reasonableness of the fees.

At a subsequent hearing, Burnham Park presented an affidavit of reasonableness prepared by Barbara Bertok, also of Mayer, Brown & Platt. The affidavit stated that Bertok had reviewed the fee petition and that, based on her knowledge of the billing practices at Mayer, Brown & Platt and the rates charged by other attorneys, the amount requested was reasonable.

Corkill’s counsel informed the court that Corkill had not filed a counteraffidavit challenging the reasonableness of the fees. Counsel stated that, instead, Corkill was going to join the attorney fees issue with its appeal from the court’s order granting Burnham Park’s motion for summary judgment. The trial court subsequently entered a judgment for fees in the amount of $26,488.60. Corkill appeals from the trial court’s summary judgment in Burnham Park’s favor and from the court’s award of fees.

I

In appeal No. 1 — 88—3805, Corkill argues that the trial court erred in entering summary judgment in Burnham Park’s favor. Cor-kill argues that there were genuine issues of fact and that Burnham Park was not entitled to judgment as a matter of law. Corkill also argues that the trial court erred when it found that Burnham Park was not estopped from seeking to have the sign removed and when it severed Burnham Park’s counterclaim.

We find that any claim by Corkill that the trial court erred when it severed Burnham Park’s counterclaim has been waived. The record shows that at the October 3 hearing, Corkill argued that Burnham Park could not bring a section 11 — 13—15 action by filing a counterclaim in an administrative review action. And at the November 18 hearing, after the administrative review proceeding was remanded for a finding on the issue of whether the city was estopped from asserting that the sign violated a zoning ordinance, Corkill argued that Burnham Park also should be estopped from asserting that the signs violated the ordinance.

At no time did Corkill object to severance nor did it ever move the court to stay proceedings on Burnham Park’s counterclaim pending the outcome of the administrative review proceeding. Thus, Corkill cannot now assert for the first time on appeal that it was error for the trial court to sever the two proceedings.

We also find that there is no merit to Corkill’s contention that the trial court’s finding that Corkill’s estoppel defense was inapplicable to Burnham Park constituted plain error.

In support of its claim that its estoppel defense was applicable against Burnham Park, Corkill cites Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 171 N.E.2d 605, in which the Illinois Supreme Court held that the City of Des Plaines was estopped from enforcing a zoning ordinance prohibiting the construction of a gas station within 300 feet of a church. Pointing out that a permit for the gas station had been issued by the city, that the city made no attempt to revoke the permit for seven months, and that the plaintiff had expended large sums of money in reliance upon the permit, the supreme court concluded that it would be unjust to enforce the ordinance against the plaintiff.

Corkill points out that application of the doctrine of equitable estoppel was extended to individual property owners in Sharrett v. Campbell (1982), 109 Ill. App. 3d 1, 440 N.E.2d 167, Richards v. City of Highland (1978), 59 Ill. App. 3d 692, 375 N.E.2d 1023, and Parsons v. Guild Grain Co. (1970), 125 Ill. App. 2d 59, 259 N.E.2d 806, and argues that, therefore, the trial court erred in finding that the defense of estoppel could not be applied against Burnham Park.

In Sharrett, the appellate court found that plaintiffs were estopped from claiming that defendants had violated an ordinance requiring property zoned “R — S” to have a 15-foot side yard where, at the time defendants began construction and throughout the following 4V2 months, plaintiffs, defendants, and city officials all believed that the property was zoned “R — 1” and, therefore, required only a six-foot side yard.

In Richards, the court found that plaintiffs were estopped from asserting that a proposed building was in violation of a zoning ordinance prohibiting multiple-family dwellings because plaintiffs had failed to object to other nonconforming uses constructed in the area.

Finally, in Parsons, estoppel was applied against a plaintiff who was shown defendant’s building plans before defendant applied for a permit and who, although aware that construction had begun, waited more than six months before filing an action objecting to defendant’s structure.

We find that Sharrett, Richards, and Parsons are distinguishable and that the trial court did not err in refusing to. find that Burnham Park was estopped from maintaining its action.

In order to establish equitable estoppel, it must be shown that: (1) there was some conduct by the party against whom. the estoppel is alleged, constituting either a misrepresentation or concealment of material facts; (2) the party against whom the estoppel is alleged knew that the representations made were untrue; (3) the party claiming the benefit of estoppel did not know the representations to be false, either at the time they were made or at the time they were acted upon; (4) the party estopped either intended or expected that his conduct or representations would be acted upon by the party asserting estoppel; (5) the party seeking the benefit of the estoppel relied or acted upon the representations; and (6) the party claiming the benefit of the estoppel would be placed in a position of prejudice if the party against whom the estoppel is alleged were permitted to deny the truth of the representations made. Willowbrook Development Corp. v. Pollution Control Board (1981), 92 Ill. App. 3d 1074, 416 N.E.2d 385; Stewart v. O'Bryan (1977), 50 Ill. App. 3d 108, 365 N.E.2d 1019.

Unlike Sharrett, Richards and Parsons, in the present case there were no allegations of conduct on the part of Burnham Park that was relied upon by Corkill or that was intended to mislead or conceal. Accordingly, there is no basis for Corkill’s assertion that Burnham Park is estopped from maintaining an action under section 11 — 13—15 to remove the sign.

Corkill maintains that because there is an “identity of interests” between the city and Burnham Park, if the city is found to be estopped from maintaining an action to remove the sign, Burnham Park also should be estopped. We disagree.

The doctrine of estoppel operates only between parties and their privies. (Willowbrook, 92 Ill. App. 3d at 1081.) Privity contemplates a mutual or successive relationship to the same property rights which were the subject matter of a previous proceeding. Sweeting v. Campbell (1954), 2 Ill. 2d 491, 119 N.E.2d 237; Simcox v. Simcox (1988), 175 Ill. App. 3d 473, 529 N.E.2d 1032.

In the present case, the interests of Burnham Park as a tenant of real property within 1,200 feet of CorkilTs sign and the interests of the city are neither mutual nor successive. Thus, there is no privity between Burnham Park and the city and the fact that the city might have been guilty of misrepresentation or concealment in issuing the permit does not warrant application of the doctrine of equitable estoppel to Burnham Park.

We now turn to Corkill’s arguments concerning the propriety of the trial court’s actions in granting summary judgment for Burnham Park. Corkill advances four grounds for reversing the trial court’s judgment: (1) Corkill’s estoppel defense precluded summary judgment in Burnham Park’s favor; (2) Burnham Park’s affidavit that in 1987 it had an oral lease at property within 1,200 feet of Corkill’s sign was insufficient to establish that it had standing under section 11 — 13—15; (3) Corkill’s administrative review action was still pending and until there was a final decision by the board on whether the city was estopped, there could be no violation to enjoin; and (4) the findings and decisions of the board were against the manifest weight of the evidence.

We have already found that there is no merit to Corkill’s first argument alleging that Burnham Park was estopped from seeking removal of the sign; we now find that Corkill has waived its second argument challenging Burnham Park’s standing to maintain a section 11 — 13—15 action.

At the November 18 hearing, Corkill argued that Burnham Park’s counterclaim and affidavit did not establish that Burnham Park was a tenant of real property within 1,200 feet of the sign at 41 West Congress Parkway. The trial court granted Burnham Park leave to file an amended counterclaim and affidavit. Corkill was given a week to respond to Burnham Park’s affidavit.

Burnham Park filed an affidavit stating that in May 1987, it was a tenant, pursuant to an oral lease, of property within 1,200 feet of Corkill’s sign. Corkill did not respond within the time allotted and at a subsequent hearing, Corkill’s counsel stated about the oral lease: “I have not had a chance to take discovery with regard to that. I do not know if the Court — there’s an affidavit to that effect so I would assume that they are probably correct that they have or may have had an oral lease.”

It is well settled that the sufficiency of an affidavit cannot be tested for the first time on appeal where no objection was made either by a motion to strike, or otherwise, in the trial court. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397; Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497.) Because Corkill failed to attack the sufficiency of Burnham Park’s affidavit in the trial court, any challenge thereto has been waived.

In its third argument, Corkill asserts that the trial court could not grant summary judgment on Burnham Park’s counterclaim until after ¿ final decision by the board on Corkill’s complaint. Corkill contends that if the board finds that the city is estopped from enforcing section 9.9(5), there would be no violation and, therefore, nothing to enjoin. We disagree.

In its October 3 order, the trial court affirmed the board’s finding of a violation and remanded the complaint solely for a determination of whether the city was estopped from enforcing section 9.9(5) against Corkill. A finding by the board that the city was estopped would alter neither the board’s previous finding that a violation existed, nor the trial court’s ruling affirming that finding and, as discussed above, it would have no effect on Burnham Park’s right to maintain an action under section 11 — 13—15.

In its final argument, Corkill contends that the board's finding of a violation was against the manifest weight of the evidence. Corkill claims that the ordinance designating Congress Parkway as a part of the comprehensive superhighway system is “antiquated” and should not have been relied upon by the board in finding a violation. Again we disagree.

Section 9.9(5) of the Chicago Municipal Code clearly states that no advertising sign shall be permitted within 500 feet of any major route, including those portions of the comprehensive superhighway system of the City of Chicago. The journal of the city council of Chicago clearly shows that in 1940, Congress Parkway was designated as part of the west route of the comprehensive superhighway system. This designation has never been changed. Thus, we find that the board’s decision was proper under the plain language of section 9.9(5) and there is no merit to Corkill’s claim that the decision was against the manifest weight of the evidence.

II

In appeal No. 1 — 89—0972, Corkill argues that Burnham Park is not entitled to fees under section 11 — 13—15; that Burnham Park failed to present sufficient evidence of the reasonableness of its fees; that the award included amounts not related to the finding of a violation under section 11 — 13—15; and that the amount of the award was excessive.

Section 11 — 13—15 provides in part:

“If an owner or tenant files suit hereunder and the court finds that the defendant has engaged in any of the foregoing prohibited activities, then the court shall allow the plaintiff a reasonable sum of money for the services of the plaintiff’s attorney. This allowance shall be a part of the costs of the litigation assessed against the defendant, and may be recovered as such.” Ill. Rev. Stat. 1987, ch. 24, par. 11-13-15.

Corkill argues that this section is not mandatory and that, because Burnham Park’s actions in the litigation merely duplicated those of the city, the trial court erred in awarding fees to Burnham Park. Corkill bases its argument on this court’s decision in Launius v. Najman (1984), 129 Ill. App. 3d 498, 472 N.E.2d 170.

In Launius, the City of Chicago filed an action pursuant to section 11 — 13—15 seeking to enjoin defendants from operating a parking lot in violation of a Chicago zoning ordinance. Eleven months later, the plaintiff filed a section 11 — 13—15 action, as legal titleholder to property within 1,200 feet of defendants’ property. Plaintiff’s complaint alleged the same violation as alleged in the city’s complaint and sought injunctive relief, damages, and attorney fees. A settlement was reached between the city and defendants, permanently enjoining defendants from operating a parking lot on the property. Subsequently plaintiff and defendants proceeded to trial on plaintiff’s action for damages and attorney fees. Following a bench trial, the court denied plaintiff’s request for attorney fees on the ground that its action was duplicative of the city’s action. This court affirmed the trial court’s denial of plaintiff’s request for fees.

The court found that although the attorney fees provision of section 11 — 13—15 is mandatory in an action brought by private citizens whose municipal officials are slow or reluctant to act or where the local authorities’ actions are not protective of their interests, it did not follow that private plaintiffs allowed to intervene to protect their unique interests were also entitled to attorney fees under section 11— 13 — 15 where the violation alleged is already the subject of the municipality’s prosecution. The court stated that once compliance had been accomplished by the city’s action, there was no basis upon which to award fees to the plaintiff. Launius, 129 111. App. 3d at 502.

In the present case, it was the efforts of Burnham Park and not those of the city which resulted in the order to remove the sign. Unlike Launius, here there was never any attempt made by the city to enjoin the violation. Burnham Park filed the only action seeking removal of the sign, and compliance with section 9.9(5) was accomplished solely through the actions of Burnham Park. The city’s participation in the proceedings was minimal, and there is no merit to Corkill’s claim that Burnham Park’s actions merely duplicated those of the city.

Corkill next alleges that Burnham Park failed to meet its burden of presenting sufficient evidence in support of its petition for attorney fees. According to Corkill, the affidavit of Barbara Bertok did not constitute competent evidence of the reasonableness of Burnham Park’s fees. We disagree.

Corkill has cited no cases, and this court is aware of none, in which it has been held that an affidavit of reasonableness may not be submitted by an attorney from the firm seeking the fee award. Further, in Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424, this court upheld an award of fees where the petition was submitted along with an affidavit of reasonableness prepared by a partner in the firm seeking the award. Although this court affirmed the trial court’s disallowance of several of the charges contained in the fee petition on other grounds, neither this court nor the trial court found that the affidavit submitted was incompetent to establish reasonableness.

Corkill also alleges that the computer printouts submitted by Burnham Park in support of its petitions for fees failed to set forth with specificity the costs incurred and that the amount sought in Burnham Park’s fee petition was excessive and unreasonable. We find that any argument concerning the reasonableness of Burnham Park’s fees has been waived.

It is well settled that a party seeking an award of attorney fees bears the burden of providing the trial court with sufficient evidence of the reasonableness of the fees and that the fee petitioner must produce detailed records specifying the services performed and by whom, the time expended, and the rate charged. (Kaiser, 164 Ill. App. 3d at 984.) However, while the general rule is that the reasonableness of fees is a matter subject to proof, a party who fails to object below is not entitled to the benefit of the rule that proof of the reasonableness of the fee must be made. City of Champaign v. Roseman (1958), 15 Ill. 2d 363, 155 N.E.2d 34.

In the present case, the trial court made a preliminary finding that Burnham Park was entitled to fees and that the hours set forth in its petition and the rates charged were reasonable. This finding was based on Brusslan’s affidavit and was made contingent upon Burnham Park presenting a second affidavit of reasonableness. When Corkill protested the trial court’s finding, the court replied that it had nothing before it that indicated that the fees were not reasonable. Corkill requested an opportunity to file counteraffidavits in response to Burnham Park’s affidavits and was given a week to reply.

However, at a subsequent hearing, Corkill informed the court that it had chosen not to file a response. The trial court then stated that its purpose in continuing the action was to give Corkill an opportunity to respond on the issue of reasonableness, that it “didn’t want the record to go up without my giving [Corkill] a chance to respond.” In response, Corkill’s counsel indicated that Corkill intended to appeal only the issue of whether the fees were authorized under section 11 — 13—15, adding that “since we haven’t filed an affidavit, I don’t think we can go into details of reasonableness.” Thus, the record establishes that Corkill was given an opportunity to dispute the reasonableness of Burnham Park’s fees, that Corkill chose not to do so, and that Corkill was fully aware of the consequences of its choice.

In conclusion, we find no error in the trial court’s severance of Burnham Park’s counterclaim, and we find that the trial court properly entered summary judgment in Burnham Park’s favor. We also find that Burnham Park was entitled to attorney fees pursuant to section 11 — 13—15 and that any claim that the amount of the fee award was unreasonable was waived. For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

RIZZI and FREEMAN, JJ., concur.