July 18, 2001

JUSTICE BOWMAN delivered the opinion of the court:

The State charged claimant, Eric V. Wassilak, with unlawfulpossession of a controlled substance (720 ILCS 570/402(c) (West1998)). Claimant moved to suppress evidence that he alleged wasobtained illegally. The circuit court granted the motion. The dayafter that ruling, the State filed a petition to forfeit a carclaimant allegedly used in the drug offense. Relying on thesuppression order, claimant moved in limine to bar evidence thatthe car contained controlled substances. The circuit court grantedthe motion. After holding a hearing at which the State put on noevidence, the court denied the forfeiture petition. Later,pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137), thecircuit court sanctioned the State. The court found that theforfeiture petition was frivolous because the State filed itknowing that the circuit court had just suppressed the evidencethat the State would need to prevail in the forfeiture case. TheState timely appealed.

On appeal, the State does not contest the denial of itsforfeiture petition. However, it argues that the circuit courtabused its discretion in sanctioning the State. The State assertsthat, when it filed the petition, it had several reasonable groundsto believe that the trial court's suppression order in the criminalcase did not make the forfeiture suit frivolous. The State alsoasserts that the court did not follow Rule 137 and that the trialjudge denied the State a fair hearing on the sanctions petition.

We hold that because the mere existence of the suppressionorder did not make the filing of the forfeiture petitionunreasonable, the circuit court abused its discretion insanctioning the State. We need not consider whether the trialcourt misapplied Rule 137 or denied the State a fair hearing. Wereverse the sanctions award and otherwise affirm the judgment.

The facts are as follows. On April 26, 1999, a police officerstopped claimant for driving with an obstructed view (625 ILCS5/12--503(c) (West 1998)), searched claimant and his car, and foundillegal drugs. Claimant was charged with unlawful possession of acontrolled substance. He moved to suppress the drugs, arguing thatthe stop of his car was unconstitutional. On July 7, 1999, thetrial court granted the motion to suppress.

On July 8, 1999, the State filed a petition alleging thatclaimant's car was subject to forfeiture under the Drug AssetForfeiture Procedure Act (Forfeiture Act) (725 ILCS 150/1 et seq.(West 1998)) because it had been used in the drug offense. Claimant filed an answer. Relying on the suppression order in thecriminal case, claimant also moved in limine to bar the State fromintroducing any items the police found in the car or eliciting anytestimony that a controlled substance was found in the car.

On January 31, 2000, after the State appealed the suppressionorder but before this court decided that appeal, the circuit courtheld a hearing. The parties first argued the motion in limine. Claimant asserted that the State could not introduce illegallyobtained evidence at the forfeiture hearing. He reasoned that thecourt had already decided that the search of the car was illegaland that the State could not relitigate that issue. The Stateresponded in part that it had appealed the suppression order andthat the criminal case was still pending in the circuit court.

The trial court granted the motion in limine. The judgeexplained that the State filed the forfeiture petition in order tocircumvent his earlier ruling that the search of the car wasunconstitutional. Thus, the circuit court had barred the evidenceand the State could not use it in this proceeding.

After the State declined to dismiss the suit voluntarily, thecase proceeded to a hearing. However, conceding it now had noevidence to present, the State immediately rested. The trial courtgranted claimant a judgment. Over the State's objection, the courtordered that, pursuant to the Forfeiture Act, the State'sAttorney's office would pay claimant's costs and attorney fees.

On March 1, 2000, claimant filed a petition for sanctions. The petition alleged in part that the forfeiture suit was frivolousbecause the State should have realized that collateral estoppelbarred the State from using evidence that the court had suppressedin the criminal case. Claimant conceded that the Forfeiture Actdid not empower the court to assess costs or attorney fees againstthe State. However, he noted that Rule 137 gave the court suchpower upon a timely petition, and he asked the court to treat hispetition as one for Rule 137 sanctions.

The State responded that, for a variety of reasons, theforfeiture petition was not frivolous even though the order in thecriminal case had suppressed the evidence the State needed in theforfeiture case. The State maintained in part that, when it filedthe forfeiture petition, the appellate court had yet to decide theState's appeal from the suppression order. The attorneys who filedthe petition might reasonably hope that this court would reversethe suppression order and enable the State to introduce theevidence it needed to prevail on the forfeiture petition.

On March 14, 2000, while claimant's petition was pending, thiscourt affirmed the trial court's suppression order in the criminalcase. People v. Wassilak, No. 2--99--0790 (2000) (unpublishedorder under Supreme Court Rule 23). One justice stated that theState's appeal was altogether frivolous. Wassilak, slip order at11-13 (McLaren, J., specially concurring).

On April 28, after arguments, the trial court ordered theState to pay claimant $1,500 in attorney fees pursuant to Rule 137. The court explained that the State had acted unreasonably in filingthe forfeiture suit because the suppression order in the criminalcase had just deprived the State of any evidence it could use toprove the allegations of the forfeiture petition.

On appeal, the State advances several reasons why the trialcourt erred in imposing sanctions. We need not consider most ofthe State's arguments. For the reasons that follow, we hold that,under the governing law, the trial court abused its discretion insanctioning the State for filing the forfeiture petition.

As pertinent here, Rule 137 provides that, by signing apleading, an attorney certifies that he has read the pleading and"that to the best of his *** belief formed after reasonable inquiryit is well grounded in fact and is warranted by existing law orgood-faith argument for the extension, modification, or reversal ofexisting law, and that it is not interposed for any improperpurpose." 155 Ill. 2d R. 137. If a pleading violates this rule,the court may sanction the attorney or the attorney's client. 155Ill. 2d R. 137. Because Rule 137 is penal, courts should construeit strictly. Belfour v. Schaumburg Auto, 306 Ill. App. 3d 234, 243(1999). The party seeking sanctions must prove that his opponenthas violated Rule 137. Edward Yavitz Eye Center, Ltd. v. Allen,241 Ill. App. 3d 562, 569 (1993). On appeal, we shall not reversean award of sanctions unless the court abused its discretion. Belfour, 306 Ill. App. 3d at 243.

Given the caution with which courts must apply Rule 137, weconclude that the trial court abused its discretion in sanctioningthe State for filing the forfeiture petition. It is true that theState brought the petition the day after the court grantedclaimant's motion to suppress the evidence in the criminal case. However, this fact by itself did not mean that the State had noreason to believe it might prevail on the forfeiture petition.

When the State filed the petition, the suppression order inWassilak was still on appeal. The State could reasonably hope thatwe would reverse that order and leave the State free to introducethe evidence it needed to support the forfeiture petition. Eventually, we affirmed the suppression order. However, havingexamined our decision in Wassilak, we do not think that the State'sappeal was so clearly doomed that the State should be penalizedbecause it did not assume that an affirmance of the suppressionorder was inevitable. (Indeed, in explaining why he thought theforfeiture petition should not have been filed, the trial judgeconceded, "I don't know what the appellate court is going to do.")

We also believe that the State should not be penalized forrefusing to await the outcome of the Wassilak appeal before filingthe forfeiture petition. Under the Act's time constraints, theState simply did not have that luxury. After receiving a notice ofseizure from the seizing agency, the State may wait no more than 45days before notifying the property's owner of the impendingforfeiture. 725 ILCS 150/6(A) (West 1998). After the notice ofthe impending forfeiture takes effect, a claimant has 45 days tofile a verified claim and deposit a cost bond (725 ILCS150/6(C)(1), (C)(2) (West 1998)). Within 45 days of the receipt ofthe claim and the cost bond, the State's Attorney must file aforfeiture complaint. 725 ILCS 150/6(C)(2) (West 1998).

Here, the record demonstrates that the State could not havepostponed filing the forfeiture petition until this court ruled inWassilak. On June 16, 1999, claimant served the State with a copyof his verified claim. On June 17, 1999, the claim was filed inthe circuit court. Thus, if the State wanted to file a petitionfor forfeiture, it had to do so by the first week of August 1999,less than a month after the trial court entered the suppressionorder in Wassilak. On July 8, 1999, the State faced two choices:file the petition while the suppression order was in effect butstill subject to appeal and possible reversal, or abandon theforfeiture action entirely. Because the latter course was not theonly reasonable one, we hold the trial court exceeded itsdiscretion in punishing the State for electing the former course.

In concluding otherwise, the trial court apparently relied onwhat it perceived as the collateral estoppel effect of itssuppression order. The court reasoned that, after it barred thecrucial evidence, the State's forfeiture petition could succeedonly if the State were allowed to relitigate the findings the trialcourt had just made at the suppression hearing. Similarly,claimant argues (as he did at the trial level) that, in filing itsforfeiture petition, the State inexcusably ignored settledprinciples of collateral estoppel. We disagree.

Collateral estoppel "bars the relitigation of particularissues decided in another action between the same parties on adifferent cause of action." Cirro Wrecking Co. v. Roppolo, 153Ill. 2d 6, 20 (1992). Three conditions must be met before a courtmay apply collateral estoppel: (1) the issue decided in the firstcase must be identical to the one presented in the second case; (2)there must have been a final judgment on the merits in the firstcase; and (3) the party against whom the estoppel is asserted musthave been a party to, or in privity with a party to, the firstcase. Congregation of the Passion, Holy Cross Province v. ToucheRoss & Co., 159 Ill. 2d 137, 152 (1994). Here, the suppressionorder did not have collateral estoppel effect because the second ofthese conditions was not satisfied.

Under settled Illinois law, a judgment is not final forcollateral estoppel purposes until the potential for appellatereview has been exhausted. Ballweg v. City of Springfield, 114Ill. 2d 107, 113 (1986). A suppression order is technicallyinterlocutory, but courts will accord it collateral estoppel effectas a "final judgment" if the State has forgone or exhausted anyappellate review of the order. See People v. Wiedman, 168 Ill.App. 3d 199, 206 (1988); People v. Neziroski, 102 Ill. App. 3d 720,723 (1981). However, under Ballweg, a suppression order cannot befinal for collateral estoppel purposes if it is still subject toappellate review.

Here, when the State filed the forfeiture petition, thepotential for appellate review of the suppression order had notbeen exhausted and would not be exhausted until long after thestatutory deadline for filing a petition to forfeit the car thatwas searched. The forfeiture petition was not barred by collateralestoppel. We believe that the State's decision to proceed with itwas not otherwise so ill founded that imposing punitive sanctionswas a proper exercise of the trial court's discretion. Therefore,we reverse the sanctions award. As the State does not appeal thedenial of its forfeiture petition, we affirm that part of thejudgment.

The judgment of the circuit court of McHenry County isaffirmed in part and reversed in part.

Affirmed in part and reversed in part.

RAPP and BYRNE, JJ., concur.