Category: Pleadings

False Allegations in Petitions Draw Sanctions

In Amen v. Attiah, 2023 IL App (2d) 220031-U, the Illinois Appellate Court upheld sanctions awards in three cases where the same plaintiff requested no contact orders against three different people. The underlying dispute was between citizens and the school board, of which Amen was a member. The dispute concerned whether or not to return to in person learning. Each petition argued that there were threatening statements in facebook posts, but the posts were not attached to the petitions. The petition was a member of a school board. The Appellate Court affirmed the award of Rule 137 sanctions.

¶ 48 The record supports the trial court’s findings for Rule 137 sanctions against Amen due to the untrue allegations littered throughout her petitions. See supra ¶ 25. The evidence also fully supports the notion that sanctions were appropriate as the allegations in Amen’s petitions were wholly unsupported by facts or law. Indeed, the evidence tended to show that the petitions were designed to stifle respondents rights to speak out against Amen’s effort to gain re-election to the school board. The trial court explicitly found as such by noting

“This is not a situation where there is no harm from petitioner asking for a motion to be granted. While not dispositive of the outcome, Petitioner used her status as a public official to intimidate ordinary citizens. Worse, this petition was filed one day after a respondent demanded the school board act against Petitioner for her public campaign against them. It’s obvious to the Court that Petitioner wished to show them the consequences of public disagreement with her and quash their campaign and criticism of her. Oddly, these respondents had little to no contact with Petitioner. Can you imagine if a local mayor sought court action against a constituent or constituents for little more than online campaigning against that mayor? There’s essentially no difference between that scenario and this. Someone who dares to fight City Hall should be able to do so without fear of meritless litigation. It’s not lost on the court that Petitioner labels herself as a criminal defense attorney and civil rights attorney while seeking this claim against ordinary citizens, though her status as an attorney is not essential to the court’s finding.”

Amen takes further issue with the last sentence in the above findings. She asserts that the trial court improperly relied on her status as an attorney in granting respondents’ motions for sanctions. This assertion is meritless. Rule 137 applies to both attorneys and litigants. See IL. S. Ct. R. 137(a) (eff. Jan. 1, 2018). Throughout the proceedings Amen referred to herself as an attorney. She took issue in her petitions with respondents’ comments on her advertisement for services as an attorney. At no point in the underlying proceedings did she object or otherwise complain about being labeled as such. The trial court’s reference to her status as a criminal defense attorney in no way indicates that it relied on that status in granting the motions for sanctions. As Rule 137 applies equally to both attorneys and litigants, her complaints on this issue are a non-event.

¶ 49 Equally meritless is Amen’s assertion that the trial court treated the hearing on respondents’ motions for sanctions as a plenary hearing for an order of protection. The argument is based on the trial court’s reference to the hearing as an “OP” near the end of the hearing on September 22, 2021. Burton then corrected the trial court by noting that it was a motion for sanctions brought by respondents’ counsel. The court then tells Burton, “You are right.” At the beginning of that hearing, the trial court referred to the matter as “a Motion for Sanctions and movant in this case is respondent.” The order awarding sanctions to respondents repeatedly refers to the motions for Rule 137 sanctions. To state it mildly, Amen’s assertion that the trial was treated as a plenary hearing for an order of protection is based on a momentary misstatement by the trial court as opposed to any theory grounded in Illinois law or a reasonable person’s ability to read the report of proceedings.

¶ 50 In sum, the trial court’s award of sanctions and fees in favor of respondents was not an abuse of discretion. The detailed order is supported by the evidence presented and we will not disturb those findings here.

Comment: the court seemed concerned that Amen was using the requests for protective orders to stifle speech.

www.clintonlaw.net

Plaintiff’s Attempt to Escape Divorce Court Sanctioned under Rule 137

The case is Davis v. Davis, 2019 IL App (3d) 170744. The parties were divorced in 2012. Husband believed that his wife had violated the postmarital agreement, but instead of filing a claim in the Divorce case he filed a breach of contract lawsuit. His case was dismissed. The dismissal was affirmed on appeal but the Appellate Court reversed the denial of Rule 137 sanctions. The court found that the filing of the breach of contract action violated Rule 137 and awarded wife her legal fees associated with defending the case:

¶18.  The court found that dismissal was warranted because affirmative matter defeated Michael’s claim. The court reasoned that the action was “a divorce court matter” and should have been brought in the dissolution action. We agree with the trial court. Dissolution proceedings are designed to dispose of all matters connected with the dissolution of a marriage, including the parties’ attorney fees. See 750 ILCS 5/508 (West 2016). The dissolution proceedings and the breach of contract action were intertwined asthey were both based on the postmarital agreement. Bringing this claim in the dissolution action would not result in the joining of distinct and independent matters or require separate briefs, defenses, or the joinder of claims against multiple defendants. Both the dissolution action and the breach of contract action relied on the postmarital agreement for resolution. Leann was the only defendant, and there was no one else to join. The doctrine of multifariousness is not applicable under these facts. The dissolution action, which was pending at the time Michael brought the breach of contract action, was the appropriate forum for Michael to seek attorney fees. We find the trial court’s dismissal on this alternative ground was also proper…..

¶25.              We determine that sanctions under both Rule 137 and Rule 375 are warranted. We find that Michael lacked a legal or factual basis to pursue his breach of contract action and to appeal it. He reasoned that his breach ofcontract action was independent of the dissolution proceedings. Nevertheless, he relies on the postmarital agreement to support both his dissolution claim and his breach of contract claim, indicating that he wasaware both causes of action were based on the same set of facts. Moreover, after contesting the validity of the postmarital agreement, Leann complied with its terms and provisions negating any basis for a breach. In essence, Michael attempted an end-around of his obligations under the postmarital agreement to be obligated for his own legal expenses. His filing the breach of contract action and the appeal of its dismissal unnecessarily extended proceedings between the parties. Because there was no basis for Michael’s breach of contract claim, his pursuit of the action can only be directed to harass Leann.

¶ 26                 We thus direct Michael to pay the cost to Leann of defending his action at both the trial and appellatecourts. See Ill. S. Ct. R. 366 (eff. Feb. 1, 1994) (this court may enter any judgment that should have been entered in the trial court). Leann’s attorney should present to this court an affidavit and billing records distinguishing between the trial and appellate work so we may enter proper sanctions amount under each rule. Amadeo v. Gaynor, 299 Ill. App. 3d 696, 706 (1998) (court determined sanctions amount based on attorney affidavit and billing records). Leann has offered to supply this court with the necessary financialinformation within seven days, and we request that she so submit the affidavit and billing records within seven days after issuance of this opinion. We will enter an order specifying the amount due and allow Michael 14 days to either pay Leann or challenge her accounting. We further direct Michael to pay Leann directly through her counsel.

Comment: Don’t try to avoid the divorce court or the divorce judge by filing a “contract” claim in another court.

 

Pro Se Attorney May Obtain Rule 137 Sanctions in Illinois For His Own Legal Work – Updated

Illinois has long allowed a client to seek Rule 137 sanctions if the allegations brought against him are frivolous or without factual basis or both. Illinois also has a rule that provides that a lawyer who is sued and represents himself cannot obtain legal fees for his own work. (He can obtain fees if he hires counsel).

In McCarthy v. Reynolds, 2018 IL App (1st) 162478, Illinois Appellate Court, First District, those two rules collided. Unfortunately for the lawyer defendant, the court held that he cannot obtain legal fees under Rule 137 because he represented himself.

The procedural history of the case was not complex. McCarthy was a beneficiary of a trust. He sued the lawyer employed by the trust (Marvin Gray) for breach of fiduciary duty and tortious interference with his beneficiary interest.

Gray moved to dismiss the complaint and was successful. He then sought and obtained an award of Rule 137 sanctions from the trial court. The case was dismissed under the doctrine of res judicata on the ground that the same lawsuit had been filed previously by McCarthy in 2013 and had been dismissed.

On appeal, McCarthy argued that Gray could not recover Rule 137 sanctions for his own work. The Appellate Court held that sanctions were appropriate.  The explanation:

¶ 21 Here, in its August 4, 2016, corrected order, the circuit court held that plaintiff’s tortious interference claim was filed with no basis in law because it was barred by the doctrine of res judicata. The circuit court noted that plaintiff filed the 2013 lawsuit and litigated it to its final conclusion. The court further reasoned that plaintiff was “acutely aware of the proceedings because he verified the complaint in that case * * * and he is a lawyer himself.” Plaintiff additionally appealed the circuit court’s decision of the 2013 case and later listed himself as cocounsel on the petition for leave to appeal to the Illinois Supreme Court. Accordingly, plaintiff was “well-aware” of the allegations in the 2013 complaint and the proceedings that took place in relation thereto. The circuit court found there was “no basis in law” for plaintiff to file his tortious interference claim where, despite being aware of the final judgment in the 2013 case, he never set forth any good faith explanation regarding why he filed the subsequent claim that was a clear attempt to relitigate the findings of fact and credibility determinations made in the 2013 case.

¶ 22 We find the circuit court did not abuse its discretion in imposing Rule 137 sanctions against plaintiff for violating the Rule. As found by the circuit court, plaintiff, though represented by counsel in the 2013 case, expressly was involved and had knowledge of the allegations of that complaint and the resulting proceedings that occurred. Notwithstanding, plaintiff filed the instant action to challenge Gray’s credibility in the 2013 action, which is a claim that should have been raised in the 2013 case. We, therefore, conclude plaintiff’s tortious interference claim was not well-grounded in law because it was barred by res judicata. As a result, it was not unreasonable for the circuit court to find the tortious interference claim was filed for an improper purpose under Rule 137.

¶ 23 To the extent plaintiff argues he was sanctioned without a proper hearing, we disagree. Plaintiff alleges Gray failed to raise res judicata as a basis for the imposition of sanctions and, therefore, the circuit court erred in awarding sanctions on that basis without providing him with a hearing. Our review of the record demonstrates that the circuit court dismissed plaintiff’s tortious interference claim on February 27, 2015, based on res judicata and then granted Gray’s request for Rule 137 sanctions on March 30, 2016, where it found the tortious interference claim was frivolous. Accordingly, at the time the circuit court considered the Rule 137 sanctions, plaintiff was fully aware that his tortious interference claim had been dismissed based on res judicata. Moreover, Gray’s motion requesting Rule 137 sanctions alleged he was entitled to such sanctions “[d]ue to the plaintiff’s unfounded, fallacious and specious allegations and pleadings.” Notwithstanding, plaintiff never requested an evidentiary hearing on any basis.

Alas, the lawyer could not recover fees for his own legal time, so the sanctions award disappeared.

¶ 26 Plaintiff finally contends the circuit court abused its discretion in awarding excessive fees against him to an attorney that proceeded pro se. Plaintiff cites Hamer v. Lentz, 132 Ill. 2d 49 (1989), and its progeny to support his argument regarding the impropriety of awarding the fees to Gray.

¶ 27 We first address our standard of review. As stated, a circuit court’s decision to impose sanctions pursuant to Rule 137 is a matter of discretion and will not be overturned absent an abuse of that discretion. Nelson, 408 Ill. App. 3d at 67. However, whether a circuit court has the authority to grant attorney fees as an available remedy is a question of law that we review de novo. People ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc., 2017 IL App (1st) 152668, ¶ 101. Because plaintiff challenges the circuit court’s authority to award attorney fees under Rule 137 to Gray, who appeared pro se, our review is de novo.

¶ 28 In Hamer, the supreme court held that an attorney appearing pro se in an action brought pursuant to the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, ¶ 201 et seq.) was not entitled to attorney fees. Hamer, 132 Ill. 2d at 63. The FOIA contains a standard fee-shifting provision that is silent on the issue of a pro se attorney recovering fees. The supreme court reasoned that fees were not appropriate under those circumstances because the fee-shifting provision of the FOIA was designed (1) to remove the burden of legal fees as a deterrent from litigants, which was not a barrier for a pro se attorney because a lawyer representing himself does not incur legal fees, (2) to reduce unnecessary litigation by encouraging citizens, even lawyers, to seek objective legal advice before filing suit, and (3) to avoid abusive fee generation by unscrupulous attorneys. Id. at 61-62. Subsequent appellate decisions have expanded the rule to other contexts. See, e.g., Kehoe v. Saltarelli, 337 Ill. App. 3d 669, 678 (2003) (holding an individual attorney was not entitled to recover fees for pro se representation in a malpractice action); In re Marriage of Pitulla, 202 Ill. App. 3d 103, 117-18 (1990)(finding the rule barring pro se attorneys from collecting attorney fees applied in the context of a divorce proceeding); Uptown People’s Law Center v. Department of Corrections, 2014 IL App (1st) 130161, ¶ 25 (denying fees under FOIA for work performed by in-house, salaried lawyers on behalf of its employee, an organization).

¶ 29 The parties have not cited, and our research has not uncovered, any case law applying the Hamer rule to a Rule 137 motion. We acknowledge the purpose of Rule 137 is, in relevant part, to curb the filing of frivolous pleadings. See Sanchez v. City of Chicago, 352 Ill. App. 3d 1015, 1020 (2004). We further acknowledge that plaintiff’s tortious interference claim was undoubtedly a frivolous cause of action. Rule 137, however, is silent on the recovery of attorney fees for all pro se litigants, whether an attorney or not. Without any support establishing that attorney fees are appropriate under the circumstances before us, we choose to follow the demonstrated law providing that pro se attorneys are not entitled to attorney fees, especially because Rule 137 is penal in nature and must be strictly construed. See Adler, 271 Ill. App. 3d at 476. We find the policy reasons provided in prior case law to be convincing; thus, we will not extend Rule 137 to provide attorney fees to pro se attorneys.

Mr. Gray deserves credit for his excellent legal work on his own behalf. The court, applying well-settled law, concluded that he could not recover for that work.

Update: The Illinois Supreme Court reversed the judgment of the Appellate Court.

¶ 28 We find that Hamer and its progeny are distinguishable because those cases did not involve Rule 137 sanctions to compensate a pro se attorney defending himself against frivolous claims. The essential underlying policy of Rule 137 of discouraging frivolous or harassing litigation is furthered by imposing sanctions in the form of an award of attorney fees in favor of a pro se attorney defending against meritless claims. See Sundance Homes, 195 Ill. 2d at 285-86; In re Estate of Wernick, 127 Ill. 2d at 77. Here, defendant did not initiate or otherwise invite the frivolous pleadings. Nevertheless, defendant was forced to defend against the frivolous claims filed by plaintiff, also an attorney. If the policy of Rule 137 sanctions is to deter frivolous pleading and litigation, it would be illogical to deny attorney fees to pro se attorneys defending themselves in such matters.

¶ 29 The policy considerations underlying our decisions in Hamer and My Pillowon fee-shifting provisions are not present when a court awards sanctions under Rule 137. Here, sanctions are intended as a punishment against the party who abuses the judicial process, not as a reward to a successful pro se attorney who is defending against a frivolous lawsuit. The concern articulated in Hamer and My Pillow on deterring abusive fee generation by lawyers who initiate litigation is not present when sanctions are imposed against a plaintiff who files frivolous pleadings. This case does not involve awarding attorney fees to an attorney bringing suit as a plaintiff in his own name. Rather, defendant was forced to expend his time defending a frivolous lawsuit, as well as pursuing sanctions clearly provided for by Rule 137.

…

¶ 31 We reiterate that “[t]he purpose of Rule 137 is to prevent abuse of the judicial process by penalizing claimants who bring vexatious and harassing actions.” Sundance Homes, 195 Ill. 2d at 286. To hold that an attorney cannot recover reasonable attorney fees in defending himself against frivolous litigation would clearly frustrate the purpose of Rule 137 and unfairly reward those who persist in maintaining frivolous litigation.

¶ 32 We hold that, under Rule 137, a court is authorized to impose sanctions in the form of attorney fees under Illinois Supreme Court Rule 137(a) (eff. July 1, 2013) against a plaintiff to compensate an attorney defending himself against a frivolous cause of action. Accordingly, we reverse that part of the appellate court decision holding to the contrary and remand with directions to reinstate Gray’s attorney fee award.

Comment: the Illinois Supreme Court, in my view, has made the correct ruling. Sanctions should be available even where a lawyer must defend himself pro se.

Ed Clinton, Jr.

The Clinton Law Firm

Appellate Court Reverses Trial Court For Failure to Allow Amendment to Complaint

Illinois is a fact-pleading state, which generally means that the complaint must lay out the factual details of what happened between the two parties. By forcing the plaintiff to plead facts, the courts weed out some causes of action. The question arises often: how many attempts does the plaintiff get to state a claim?

In Masada v. Ciccone, 2016 IL App (1st) 152470-U, the Appellate Court reversed a decision of the trial court to dismiss a case. The reason was that the trial court should have accepted plaintiff’s first amended complaint which cured the defects in the pleading. The case featured ugly allegations that the defendants (who together with plaintiffs owned units in a condominium) destroyed religious symbols and subjected the plaintiffs to abuse and harassment. Plaintiff sought to plead a claim for intentional infliction of emotional distress. The court dismissed the claim finding that the complaint did not plead enough facts. Plaintiffs then sought reconsideration and tendered a new proposed second amended complaint. The court denied leave to file the proposed second amended complaint and denied the motion to reconsider.

The appellate court reversed. It held that the court abused its discretion in denying leave to file the second amended complaint because the proposed complaint cured the problems with the first amended complaint because it included detailed factual allegations.

The Appellate Court reversed and reinstated the case. Unfortunately, the Appellate Court decided not to publish the opinion, even though it should have been.

There is one more issue in the opinion that is worth discussing. The defendants argued on appeal that the case should be affirmed because plaintiff did not hire a court reporter and transcribe the hearing on the motion to dismiss the complaint. The Appellate Court disagreed with this analysis. “We need not address Ciccone’s arguments regarding the March 10, 2015, hearing and order because that order is not the subject of this appeal. It was not mentioned in plaintiffs’ notice of appeal or substantive arguments of their brief. Further, we do not find a lack of the July 15, 2015, hearing transcript, bystanders report, or agreed statement of facts to be fatal to our review regarding the sufficiency of the allegations of plaintiff’s complaint, as our review is de novo. See Gonnella Baking Co. v. Clara’s Pasta di Casa, Ltd. 337 Ill. App. 3d 385, 388 (2003).” Because the court reviews a decision to dismiss a complaint de novo, there is no requirement that appellant include the transcript in the record.

Edward X. Clinton, Jr.